Maritime Death Employers Duty Negligence Claim Lawsuit Jones Act Law

251. Miscellaneous

One employed as mate on barge undergoing repairs in employer's repair yard, who, after being ordered to do carpentry work on raft used in chipping, painting, and welding on employer's vessel, but not used in repairs being done on vessel on which he normally served, stood on catwalk on lighter alongside which raft lay and attempted to move raft into position for boarding and was injured when catwalk gave way, may recover for injuries in action under 46 USCS Appx § 688, such injury having occurred while mate was acting in course of his employment within meaning of that term as used in § 688. Braen v Pfeifer Oil Transp. Co. (1959) 361 US 129, 4 L Ed 2d 191, 80 S Ct 247.

In cases arising under 46 USCS Appx § 688, it is not within scope of seaman's employment to aid intoxicated member of same crew in returning to their ship. McClure v United States Lines Co. (1966, CA4 Va) 368 F2d 197.

Seamen voluntarily engaging in fight are not engaged in work as seamen and are not entitled to recover under 46 USCS Appx § 688. The Quaker City (1933, DC Ga) 1933 AMC 1291.

Seaman who fell from ladder aboard ship, was acting in course of employment within meaning of 46 USCS Appx § 688, when he decided to go into hold in which accident occurred, for purpose of investigating whether steam was coming from hold and what had caused it to escape, since he was only deck officer on duty. Hilderbrand v United States (1954, DC NY) 134 F Supp 514, affd (CA2) 226 F2d 215.

Where seaman aboard American vessel discharging cargo in Republic of Vietnam was accused of throwing Vietnamese watchman overboard, captain of vessel permitted Vietnamese officials to put seaman in waterfront jail for several days, and conditions of seaman's imprisonment were substandard and subhuman, seaman's theory of recovery against owner of vessel under 46 USCS Appx § 688 was not well founded as his damages did not fall within purview of § 688 in that he did not sustain personal injuries in course of his employment. Russell v States S.S. Co. (1973, DC Or) 376 F Supp 233.

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.

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.

B. Vicarious Liability

1. In General

269. Generally

Jones Act (46 USCS Appx § 688) is applicable to American shipowner on grounds that it acted through agents who caused accident which killed one American seaman and injured another, since Jones Act incorporates standard of Federal Employers' Liability Act (45 USCS § § 51 et seq.) which renders employer liable for injuries negligently inflicted upon employees by its "officers, agents, or employees." Hopson v Texaco, Inc. (1966) 383 US 262, 15 L Ed 2d 740, 86 S Ct 765.

Shipowner is not liable for negligence of others unless such negligence creates unseaworthy condition. Neal v Lykes Bros. S.S. Co. (1962, CA5 Tex) 306 F2d 313.

Vessel owner may be held liable for dangerous condition caused by third party's lengthy control over vessel. In re River Transp. Assocs. (1993, CA5 La) 5 F3d 97.

Mere fact that person causing injury to seaman was not officer or member of seaman's vessel but was member of armed forces of United States will not exonerate United States and its general agent from liability under 46 USCS Appx § 688. De Witt v United States (1946, DC Wash) 67 F Supp 61.

270. Fellow servant's negligence

Owner of vessel is not relieved from liability for providing unseaworthy appliance merely because unseaworthiness was attributable to negligence of fellow servants of seaman rather than to negligence of owner. Mahnich v Southern S.S. Co. (1944) 321 US 96, 88 L Ed 561, 64 S Ct 455, 1944 AMC 1.

46 USCS Appx § 688 did not change rule of shipowner's liability to member of crew injured by another member's negligence, without regard to their relationship imposed by maritime law. Payne v Jacksonville Forwarding Co. (1923, CA5 Fla) 290 F 936, 1923 AMC 524.

Shipowner who provides unseaworthy vessel is not relieved of liability because unseaworthiness is attributable to negligence of fellow servant of injured person rather than to shipowner's negligence. Marchese v Moore-McCormack Lines, Inc. (1975, CA2 NY) 525 F2d 831.

Shipowner owes to seamen employed on its vessels absolute, nondelegable duty to provide seaworthy vessel; ship can be unseaworthy by reason of defective personnel as well as by reason of defective gear or leaky hull, but not every transitory occurrence of misbehavior on part of fellow seamen can support finding of breach of warranty of seaworthiness; to be actionable, plaintiff's injuries must have been caused by condition of ship. Harbin v Interlake S.S. Co. (1978, CA6 Ohio) 570 F2d 99, 2 Fed Rules Evid Serv 945, cert den 437 US 905, 57 L Ed 2d 1135, 98 S Ct 3091, 98 S Ct 3092.

Negligence of subordinate of master of vessel is not imputed to master for purposes of Jones Act claim (46 USCS Appx § 688). Johannessen v Gulf Trading & Transp. Co. (1980, CA2) 633 F2d 653.

Fact that injury was caused by officer or fellow servant is no defense to action under 46 USCS Appx § 688. Hansen v United States (1926, DC Ga) 12 F2d 321.

Fellow servant rule is not available to steamship owner in libel against it by stevedore employed by it who was injured while transferring cargo from barge to steamship. The Tampico (1942, DC NY) 45 F Supp 174, 1942 AMC 955.

Negligence of fellow seaman cannot be alleged where injured seaman brings suit in admiralty against ship without benefit of 46 USCS Appx § 688. Platt v Chesapeake & O. R. Co. (1948, DC Ohio) 82 F Supp 968.

Seaman may recover for injuries inflicted by equipment which is defective due to negligence, or by negligent actions of fellow crewman or officers, or other agents of employer. Puamier v Barge BT 1793 (1974, ED Va) 395 F Supp 1019, 17 UCCRS 745.

271. --Relationship of 46 USCS Appx § 688 to fellow servant rule

46 USCS Appx § 688 abrogates fellow servant rule. Jamison v Encarnacion (1930) 281 US 635, 74 L Ed 1082, 50 S Ct 440.

One who has elected to sue under state employers' liability law cannot urge abrogation of fellow servant rule in 46 USCS Appx § 688. Van Norden v Chas. R. McCormick Lumber Co. (1927, CA9 Or) 17 F2d 568, 1927 AMC 514, cert den 274 US 758, 71 L Ed 1337, 47 S Ct 768.

Under old law seaman could not recover, except for maintenance and cure, for injury sustained through negligence of another crew member; but under Jones Act (46 USCS Appx § 688), fellow servant rule is abrogated by virtue of 45 USCS § 54 incorporated by reference in § 688. Becker v Waterman S.S. Corp. (1950, CA2 NY) 179 F2d 713.

272. --Scope of employment or authority

Where shipowner is under no duty to provide safe means of transportation between ship and any place of amusement crew members desire to visit while on shore leave in vessel's home port, shipowner is not liable under 46 USCS Appx § 688, for negligence, if any, of fellow seamen in renting and operating car for their private pleasure while on shore leave. Thurnau v Alcoa S.S. Co. (1956, CA2 NY) 229 F2d 73, cert den 351 US 925, 100 L Ed 1455, 76 S Ct 783.

Shipowner may not be held liable under 46 USCS Appx § 688 unless particular act performed negligently was also in scope of employment of negligent employee. Trost v American Hawaiian S.S. Co. (1963, CA2 NY) 324 F2d 225, cert den 376 US 963, 11 L Ed 2d 981, 84 S Ct 1125.

Notwithstanding abrogation of common law fellow servant rule, master is not liable for injuries resulting from unauthorized act of fellow employee. Re Southern Pac. Co. (1928, DC NY) 30 F2d 723, 1928 AMC 901, affd (CA2 NY) 30 F2d 725, 1929 AMC 1789.

Even though both members of crew were in course of employment while ashore, their action in sparring with each other was not in furtherance of ship's business and negligence of fellow servant, if any, toward other seamen would not imputed to shipowner for purposes of recovery under 46 USCS Appx § 688. Walker v Sinclair Refining Co. (1971, ED Pa) 331 F Supp 408.

Employer is liable for acts of his employees done within scope of their employment, notwithstanding that they are done in violation of rules and orders or instructions; master is not liable under 46 USCS Appx § 688 for injury to seaman arising from negligence of servant acting beyond scope of his employment. Adams v American President Lines, Ltd. (1944) 23 Cal 2d 681, 146 P2d 1.

273. Superior's negligence

In action for injuries to plaintiff while engaged as stevedore in cleaning inside of defendant's ship, declaration of second mate that for at least two days before accident happened, very gang on which plaintiff was working had been using battens identical to plaintiff's when he fell, but that he, second mate, did not know of this use, justified finding defendant chargeable with notice of it and with duty to provide against it. Basso v Palmer (1943, CA2 NY) 138 F2d 914.

If officers choose to continue to employ man who is known or should be known by them to be source of peril to those who sail with him, when measures which might reasonably be expected to prevent resulting injury are not or cannot be taken, resulting injury to member of crew is one for which person injured may recover under 46 USCS Appx § 688. Kyriakos v Goulandris (1945, CA2 NY) 151 F2d 132.

Captain's actions in attempting to salvage disabled vessel were within scope of his authority, and vessel owner was vicariously liable under 46 USCS Appx § 688 where captain's negligence in conducting salvage operation resulted in injury to crewman. 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).

Because salvage of both life and property is so encouraged that it is practically mariner's duty, captain owes his crew paternalistic duty to protect them and where seaman was unaware of stress on lines, while captain most certainly was aware, and it would have been simple matter for captain to warn seaman of danger, captain breaches his broad paternalistic duty to protect seaman. 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).

Tolerance by officer of cruel, brutal, and inhuman nature among crew constitutes negligence on part of vessel's operators. Nowery v Smith (1946, DC Pa) 69 F Supp 755, 1946 AMC 1702, affd (CA3 Pa) 161 F2d 732, 1947 AMC 756.

Owner of fishing boat was liable under 46 USCS Appx § 688 for negligence of captain. Glaser v Katalinich (1932) 169 Wash 133, 13 P2d 468.

274. Independent contractor's negligence

46 USCS Appx § 688 authorizes recovery for injuries or death of seaman as result of automobile accident which occurred when, due to negligence of its driver, local taxicab hired by ship's master in foreign port to transport seaman to United States consul after he had been incapacitated by illness, collided with truck. Hopson v Texaco, Inc. (1966) 383 US 262, 15 L Ed 2d 740, 86 S Ct 765.

While shipowner who lets construction of engine to independent contractor may not be responsible under doctrine of respondeat superior for negligence of such contractor or his servants, where owner supervises work and knows, or should know because of such supervision, that engine is inherently dangerous, owner is not freed of responsibility for its condition. Kunschman v United States (1932, CA2 NY) 54 F2d 987.

When shipowner delegates to outside contractor job of making defective ladder seaworthy, shipowner becomes chargeable with that contractor's negligence, if any, in failing to do work properly. Dixon v United States (1955, CA2 NY) 219 F2d 10.

Where seaman was returning to his vessel in transportation furnished by vessel owner and was thrown from pickup truck and suffered injuries, vessel owner was not guilty of any negligent acts or omissions which proximately caused seaman's injury as vessel owner did not own pickup truck in question and did not exercise any control over driver. Broussard v Marine Transport Lines, Inc. (1974, ED Tex) 369 F Supp 103.

In personal injury action by relief captain on charter vessel against vessel, plaintiff is exempted from contributory negligence doctrine, where he was injured while assisting independent contractor in modifying off-shore mooring at direction of vessel's captain in order to increase capacity of dive site and increase business, and where contractor was charged with supervising diving activities, because since plaintiff was injured while he and contractor were working for vessel, in furtherance of vessel's operational activities, vessel is responsible for contractor's statutory and regulatory violations. Brooker v Cleghorn (1994, DC Hawaii) 907 F Supp 1406, 1995 AMC 2161.

275. --Employees of contractor

Steamship company was not liable under 46 USCS Appx § 688 for injury to longshoreman through negligence of winchman employed by charterer of vessel. Labbee v Travenot S.S. Co. (1930, CA2 NY) 37 F2d 52, 1930 AMC 211, cert den 281 US 754, 74 L Ed 1164, 50 S Ct 408.

Shipowner is not liable for negligence of longshoremen acting as servants or employees of independent stevedoring contractor, unless such negligence creates unseaworthy condition. Neal v Lykes Bros. S.S. Co. (1962, CA5 Tex) 306 F2d 313.

2. Particular Acts of Crew

276. Horseplay

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

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

277. Operation of equipment

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

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

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

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

278. --Winches

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

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

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

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

279. Assisting in leaving vessel

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

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

280. Handling of weapon

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

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

281. Miscellaneous

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

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

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

C. Circumstances of Injury

1. Assault

a. In General

282. Generally

It is disposition of assailants, rather than simply severity of act, that is material to issue of unseaworthiness. Harbin v Interlake S.S. Co. (1978, CA6 Ohio) 570 F2d 99, 2 Fed Rules Evid Serv 945, cert den 437 US 905, 57 L Ed 2d 1135, 98 S Ct 3091, 98 S Ct 3092.

There can be no recovery for assault by fellow-servant unless assault was committed in discharge of assailant's duties and in furtherance of work of employer's business. Lambert v Morania Oil Tanker Corp. (1982, CA2 NY) 677 F2d 245.

Requirements for cause of action for sexual harassment under 46 USCS Appx § 688 include tortious physical contact and physical injury. Cash v Tidewater Marine, Inc. (1999, SD Tex) 34 F Supp 2d 448, 79 BNA FEP Cas 201.

283. Self-defense

Seaman cannot recover under 46 USCS Appx § 688 for injuries sustained in alleged assault committed in self-defense. Campbell v Waterman S.S. Corp. (1952, DC Pa) 110 F Supp 146; Watson v Joshua Hendy Corp. (1956, DC NY) 142 F Supp 335, affd (CA2 NY) 245 F2d 463.

284. Outside scope of employment

Assault by ship's officer is outside scope of employment and not in furtherance of employer's business where it is mere private brawl. Yukes v Globe S.S. Corp. (1939, CA6 Ohio) 107 F2d 888.

Seaman is not acting in furtherance of his master's business so as to make shipowner liable under 46 USCS Appx § 688, in assaulting his superior as superior attempts to take control in time of emergency. Brailas v Shepard S.S. Co. (1945, CA2 NY) 152 F2d 849, cert den 327 US 807, 90 L Ed 1032, 66 S Ct 970.

Assault is outside scope of employment and not in furtherance of employer's business where it is committed for purpose of revenge for prior assault; chief officer on ship could not recover damages from owner and operator for personal injuries as result of assault upon him by chief engineer where trial court found that chief engineer was not vicious, pugnacious, or dangerous and that chief engineer's assault was not in course of his employment. Kable v United States (1948, CA2 NY) 169 F2d 90, later app (CA2 NY) 175 F2d 16.

Assault is outside scope of employment and not in furtherance of employer's business where it is for purpose of furthering personal interests of assailant and is motivated by personal gain. Walters v Moore-McCormack Lines, Inc. (1962, CA2 NY) 309 F2d 191, reh den (CA2 NY) 312 F2d 893.

Shipowner was not liable for assault by seaman upon one coming aboard to press and clean clothes for seamen, since transaction of pressing and cleaning did not involve any concern of vessel owner. Price v United States (1925, DC La) 11 F2d 283.

Crew of ship was not acting in course of their employment or in furtherance of their master's business so as to invoke liability under 46 USCS Appx § 688 while they committed assault upon their master, whom they were bound to obey. Birks v United Fruit Co. (1930, DC NY) 48 F2d 656.

Fight in barroom due to apparently unprovoked assault by chief engineer will not constitute liability for shipowner under 46 USCS Appx § 688 where assailant had not been acting within scope of his employment, even though his purpose in coming to plaintiff's table was to speak with seaman whom assailant suspected of pretending illness aboard ship to avoid work. Nowery v Smith (1946, DC Pa) 69 F Supp 755, affd (CA3 Pa) 161 F2d 732.

Killing of seaman by fellow employee as result of personal quarrel between them, where there is no connection between quarrel and employee's work, and deceased and killer had previous to quarrel been close friends, does not result in liability of employer under 46 USCS Appx § 688. Quinn v American Range Lines, Inc. (1942) 344 Pa 85, 23 A2d 487, cert den 316 US 677, 86 L Ed 1750, 62 S Ct 1107.

285. Within scope of employment

Assault by employee's foreman for purpose of hurrying employee in his work, although in excess of authority conferred by employer upon foreman, was committed in course of discharge of foreman's duties and in furtherance of work of employer's business and is cognizable claim under 46 USCS Appx § 688. Jamison v Encarnacion (1930) 281 US 635, 74 L Ed 1082, 50 S Ct 440.

Assault may be considered as having been committed within scope of assailant's employment, and in furtherance of employer's business, where it is for purpose of reprimanding victim for tardiness and compelling him to work. Alpha S.S. Corp. v Cain (1930) 281 US 642, 74 L Ed 1086, 50 S Ct 443.

Assault may be considered as having been committed within scope of assailant's employment, and in furtherance of employer's business, where it is for purpose of waking seaman and sending him out on duty. Nelson v American-West African Line, Inc. (1936, CA2 NY) 86 F2d 730, cert den 300 US 665, 81 L Ed 873, 57 S Ct 509.

No recovery may be had for assault and battery used to prevent or abate trespass, if no more force be used than is reasonably necessary. Escandon v Pan American Foreign Corp. (1937, CA5 Tex) 88 F2d 276, 1937 AMC 743.

Under direct negligence theory in suit under 46 USCS Appx § 688, it is not necessary to show that assailant acted in course of his employment in committing assault. Koehler v Presque-Isle Transp. Co. (1944, CA2 NY) 141 F2d 490, cert den 322 US 764, 88 L Ed 1591, 64 S Ct 1288.

Where assault by chief cook on plaintiff-dishwasher was for purpose of speeding up plaintiff's work, chief cook was acting within scope of his authority, and shipowner is liable under 46 USCS Appx § 688. Pittsburgh S.S. Co. v Scott (1947, CA6 Ohio) 159 F2d 373.

Shipowner is not liable under doctrine of respondeat superior for wrongful assault committed by one employee on another unless assault is committed in furtherance of or in attempt to further owner's business. Jones v Lykes Bros. S.S. Co. (1953, CA2 NY) 204 F2d 815, cert den 346 US 857, 98 L Ed 370, 74 S Ct 72, reh den 346 US 905, 98 L Ed 404, 74 S Ct 217 and reh den 348 US 960, 99 L Ed 749, 75 S Ct 447.

Assault may be considered as having been committed within scope of assailant's employment, and in furtherance of employer's business, where it is used as disciplinary measure. Civil v Waterman S.S. Corp. (1954, CA2 NY) 217 F2d 94.

286. Assaults induced by intoxication

Although under warranty of seaworthiness shipowner is not liable every time seaman gets drunk and does damage to member of crew, nor every time injuries result from fisticuffs on shipboard, shipowner is liable for breach of warranty of seaworthiness to seaman injured through assault by drunken fellow crew member where it appears assailant is not equal in disposition to ordinary men of his calling, and that assailant's membership in crew renders crew incompetent to meet contingencies of voyage. Boudoin v Lykes Bros. S.S. Co. (1955) 348 US 336, 99 L Ed 354, 75 S Ct 382, amd on other grounds 350 US 811, 100 L Ed 727, 76 S Ct 38.

Laxity of ship's officers in enforcing ship's rule against bringing liquor onboard may be negligence sufficient for purposes of 46 USCS Appx § 688 where attack by plaintiff's assailant was induced by intoxication. Stankiewicz v United Fruit S.S. Corp. (1956, CA2 NY) 229 F2d 580.

Sole fact that plaintiff's assailant had insisted on working when he was unfit for duty because of intoxication and search of his room at that time disclosed knife hidden under pillow, will not allow recovery under 46 USCS Appx § 688 on theory that defendant had been negligent in retaining crew member of known dangerous propensities. Connolly v Farrell Lines, Inc. (1959, CA1 Mass) 268 F2d 653, cert den 361 US 902, 4 L Ed 2d 158, 80 S Ct 208.

Seaman failed to establish liability of shipowner for breach of warranty of seaworthiness under 46 USCS Appx § 688, where seaman was injured by drunken crewmember, because seaman failed to proffer evidence that crewmember used dangerous weapon or had savage disposition. McKinley v Afram Lines (USA) Co. (1993, DC Mass) 834 F Supp 510, summary op at (DC Mass) 22 M.L.W. 520.

Summary dismissal of seaman's negligence claim under 46 USCS Appx § 688 is denied, where seaman injured in fight claims that sailor who hurt him returned from shore leave in intoxicated state and carrying case of beer, while sailor claims seaman neglected to call him for his watch, because reasonable juror could conclude that U.S. was negligent in failing to provide gangway watch or to enforce ban on liquor aboard ship. Hamilton v United States (1996, ED Tex) 928 F Supp 684.

287. Employer's knowledge; assailant's violent propensities

Evidence that fellow seaman who had assaulted plaintiff was of vicious and belligerent nature and likely to inflict bodily harm upon his fellow crew members and that ship's officers knew this fact, or it should have been known to them in exercise of ordinary diligence, supports recovery under 46 USCS Appx § 688 for injuries resulting from assault. Koehler v Presque-Isle Transp. Co. (1944, CA2 NY) 141 F2d 490, cert den 322 US 764, 88 L Ed 1591, 64 S Ct 1288.

Liability under 46 USCS Appx § 688 was not affected by fact that assault by assailant occurred some distance away from ship, where assailant was vicious and violent employee of defendant, fact of which defendant was or should have been aware. Kyriakos v Goulandris (1945, CA2 NY) 151 F2d 132.

Where employer negligently hires, or negligently retains in his employment, person whom he knows or should know to be of dangerous character or disposition, seaman who receives personal injuries from assault committed by such person may hold employer liable under 46 USCS Appx § 688 for his injuries. Hanlon v Waterman S.S. Corp. (1959, CA2 NY) 265 F2d 206, cert den 361 US 822, 4 L Ed 2d 67, 80 S Ct 69.

Mere allegation that crew members had felonious and criminal propensities did not sustain cause of action under 46 USCS Appx § 688 in absence of allegation that defendant knew of these propensities or had knowledge of facts putting it on notice. Birks v United Fruit Co. (1930, DC NY) 48 F2d 656.

Where assault of which plaintiff complains is result of personal difference between plaintiff and his assailant, assailant was not known to officers of vessel to be violent and belligerent and plaintiff had himself instigated friction which resulted in assault, no recovery may be allowed under 46 USCS Appx § 688. Condon v Grace Line (1951, DC Cal) 97 F Supp 197.

Seaman's claim of Jones Act (46 USCS Appx § 688) negligence must fail, where he claims he got off vessel and went onto pier, and then seaman from another vessel attacked and brutally beat him, because fact that vessel owner informed seaman that alleged attacker was angry with him does not support conclusion that he constituted foreseeable risk. Corrigan v Harvey (1996, DC Hawaii) 951 F Supp 948, 1996 AMC 2831.

Finding that shipowner was negligent under 46 USCS Appx § 688 was precluded, where seaman who was injured in attack by fellow crewmember brought action against shipowner, presenting evidence that attacking crewmemeber drank and used illegal drugs, which was known by shipowner, because this evidence was insufficient evidence of violent behavior to find that shipowner had notice, actual or constructive, that crewmember's drunkenness and drug abuse would result in risk or peril of shipboard assault. Kowalski v American S.S. Co. (1996, ED Mich) 954 F Supp 140.

288. --Presence of weapons

Trial court erred in not submitting to jury question whether switch-blade knife was dangerous weapon within meaning of § 2277 of Title 18, and in not permitting it to decide, under appropriate instructions, if shipowner, through his officers, agents or employees, knew or should have known that seaman had switch-blade knife on ship and whether shipowner failed to take prudent action to protect crew. Fall v Esso Standard Oil Co. (1961, CA5 Fla) 297 F2d 411, 1962 AMC 951, cert den 371 US 814, 9 L Ed 2d 55, 83 S Ct 24.

b. Assaults Among Crew and Officers

289. By other crewmen

Shipowner was liable for fatal stabbing of seaman by another crew member, since officers failed to prevent foreseeable assault; chief steward allowed assailant to drink on board and was aware assailant was hostile and "on something" prior to attack. Miles v Melrose (1989, CA5 La) 882 F2d 976, 132 BNA LRRM 2481, 113 CCH LC P 11554, reh den, en banc (CA5 La) 888 F2d 1388 and reh den, en banc (CA5 La) 888 F2d 1388.

Action of ship's officers in encouraging rather than preventing fight between sailors, in course of which seaman who was innocent bystander was injured, led to liability of government for failure of officers to properly protect safety of seaman; where seaman was injured in attempting to take knife from drunken sailor during fight on ship, government as shipowner was liable for failure of officers in their duty to see safety of crew by preventing fight. Jensen v United States War Shipping Administration (1949, DC Pa) 88 F Supp 542, affd (CA3 Pa) 184 F2d 72.

Seaman injured in course of his employment by assault by another seaman may recover damages from ship owner either under doctrine of unseaworthiness or under theory of negligence under 46 USCS Appx § 688. States S.S. Co. v Featherstone (1965, DC Or) 240 F Supp 830.

In action to recover for injuries to finger suffered in fight with fellow crew member, summary judgment for defendant and dismissal are proper where plaintiff provoked fight, testifies that opponent did not have vicious nature aside from fight, and fails to show more than negligible connection between injuries and captain's sale of beer to boatswain, whose relieving plaintiff late on watch began chain of events which ended in fight. Palmer v Apex Marine Corp. (1981, WD Wash) 510 F Supp 72.

In action by widow of fishing boat captain under Jones Act and general maritime law against corporation that owned ship and employed captain, to recover for his death as result of vicious assault by ship's engineer, trial court erred in dismissing widow's unseaworthiness claim, where there were issues of fact, first, as to who had primary duty to retain seaworthy crew, i.e., captain or his employer, and, secondly, as to captain's breach of his primary duty, if any, to maintain seaworthy crew, in view of evidence that ship's engineer concealed his ill will towards captain, which raised factual question for jury as to captain's knowledge of engineer's dangerous propensities and whether captain breached his duty to take proper countermeasures; moreover, trial court erred in dismissing widow's claim that defendant was negligent in retaining engineer because of his violent disposition, where there was evidence from which jury could have found negligence by defendant in retaining engineer, because of his general reputation for violence and fact that he spent off-season employed in defendant's yard. Snow v Whitney Fidalgo Seafoods, Inc. (1984) 38 Wash App 220, 686 P2d 1090.

Seaman could not recover from shipowner under 46 USCS Appx § 688 for injuries resulting from being assaulted by another seaman while aboard launch apparently operated by military which occasionally operated launch service for seamen going from and returning to vessel while on shore leave when commercial vessels are anchored off town in Viet Nam. Bell v Seatrain Lines, Inc. (1974, 2d Dist) 40 Cal App 3d 16, 115 Cal Rptr 76.

290. By officers or superiors on crewmen

Whether assault on plaintiff-seaman will invoke liability for shipowner under 46 USCS Appx § 688 is not controlled by mere fact that assailant holds superior position or that he asserts authority, question to be answered is whether he was attempting to assert his superiority on behalf of master or in private brawl. Nelson v American-West African Line, Inc. (1936, CA2 NY) 86 F2d 730, cert den 300 US 665, 81 L Ed 873, 57 S Ct 509.

Shipowner is liable for assault by superior officer on seaman made to enforce performance of order, but not for assault growing out of personal quarrel. Sutherland v Ore S. S. Corp. (1929, DC NY) 1929 AMC 1454.

Vessel was not liable for unexpected assault by ship's officer on seaman. The Anaconda (1934, DC NY) 1934 AMC 709.

291. By crewmen on officers or superiors

Under seaworthiness doctrine, vessel owner is obligated to provide competent crew for vessel, composed of seamen of equal temperament, disposition, and seamanship; thus, unprovoked, sudden, and unusually savage assault against captain by deck hand constituted, as matter of law, breach of owner's duty to provide seaworthy vessel, regardless whether owner knew or should have known of assailant's dangerous propensities. Deakle v John E. Graham & Sons (1985, CA11 Ala) 756 F2d 821, reh den, en banc (CA11 Ala) 763 F2d 419.

Vessel is not liable under 46 USCS Appx § 688 for death of master resulting from assault committed by crew. Birks v United Fruit Co. (1930, DC NY) 48 F2d 656.

Second captain of ship is not entitled to recover from shipowner under Jones Act, 46 USCS Appx. 688, where second captain, who is white, was attacked by black crewman after second captain used racial epithet to black crewman, because junior crewman attacked superior officer, not vice versa, attack was not in shipowner's interest, and attack was not foreseeable or preventable by captain or master. Fountain v John E. Graham & Sons (1993, SD Ala) 833 F Supp 873, 1993 AMC 1978.

Third mate may recover under 46 USCS Appx § 688 where he was assaulted by forklift operator upon ordering him to stop work and get down off forklift. Foss v Oliver J. Olson & Co. (1967, 2d Dist) 250 Cal App 2d 44, 58 Cal Rptr 511.

In personal injury action by ship's officer against ship owner arising out of assault upon plaintiff by deckhand in which deckhand struck plaintiff in head with "cheaterbar" (steel pipe three feet in length, two inches in diameter, and weighing up to 15 pounds), defendant was liable on basis of unseaworthiness; questions presented in unseaworthiness claim case based on assault are whether seaman's behavior was within usual and customary standards of his calling, or whether behavior evidences wicked disposition, propensity to evil conduct, or savage and vicious nature; mere presence of seaman with such disposition renders vessel unseaworthy. Newton v Federal Barge Lines, Inc. (1980, 5th Dist) 81 Ill App 3d 454, 37 Ill Dec 183, 401 NE2d 1276.

2. Improper Management and Supervision

a. In General

292. Instruction or training

Shipowner has duty to instruct youthful, inexperienced seaman employed to work around dangerous machinery and to warn him of dangers to be encountered. The State of Maryland (1936, CA4 Va) 85 F2d 944.

Negligence of employer was responsible for injury to inexperienced fireman opening wrong draft of burner first, which example was set for him by employee assigned to instruct him and where dangers of such method had not been disclosed to him. The Maryland (1936, DC Va) 1936 AMC 310.

Drilling company is liable for injuries to seaman where company failed properly to train and supervise employees who mishandled equipment on drilling barge, causing injury to seaman, because such failure to train and supervise created unseaworthy condition which was cause of accident. Brown v Cliff's Drilling Co. (1986, ED Tex) 638 F Supp 1009.

Vessel owner was not negligent in failing to instruct mate who had had 20 years' experience. West Kentucky Coal Co. v Parker's Adm'r (1929) 229 Ky 685, 17 SW2d 753.

293. --Safety equipment

In light of decedent's inexperience and ignorance of seagoing perils, shipowner had duty to instruct decedent as to use of life vest and could not leave such important decision, to wear or not wear life vest, up to this particular individual. Davis v Parkhill-Goodloe Co. (1962, CA5 Fla) 302 F2d 489, 5 FR Serv 2d 853 (disagreed with Deal v A.P. Bell Fish Co. (CA5 La) 728 F2d 717).

Employer was negligent in failing to instruct seaman in use of goggles and to adopt and enforce regulations requiring their use, where goggles were provided seaman did not use them and by not doing so sustained injuries when metal sliver entered seaman's eye. Rogers v Gracey-Hellums Corp. (1970, ED La) 331 F Supp 1287, affd (CA5 La) 442 F2d 1196.

294. Orders and working conditions

Widow of tug fireman accidentally drowned while tending four moored, ice-covered, unlighted, undermanned tugs at night was entitled to have her suit under 46 USCS Appx § 688 submitted to jury even in absence of evidence showing causation of death by tug owner's negligence in requiring fireman to work under such circumstances. Schulz v Pennsylvania R. Co. (1956) 350 US 523, 100 L Ed 668, 76 S Ct 608, 1956 AMC 737.

Order of mate to seaman to take two shovels up ladder at same time justified finding that mate was negligent in ordering plaintiff to make such dangerous climb. Reskin v Minnesota-Atlantic Transit Co. (1939, CA2 NY) 107 F2d 743, 1940 AMC 111.

Where seaman was killed due to injuries received while standing by for inspection during storm, following stowing away of booms, only issue of negligence was act of mate in ordering inspection during approach of storm, not delay in storing of booms. Naylor v Isthmian S.S. Co. (1951, CA2 NY) 187 F2d 538, 1951 AMC 632.

Work order given by superior officer of plaintiff, even if resulting in injury to plaintiff, is not necessarily negligent conduct. 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.

Verdict was properly directed in favor of vessel owner on claim of seamen temporarily disabled as result of using toxic industrial solvent to clean vessel without respiratory protection where there was no evidence that employer knew or should have known of toxic qualities of product or that employer should have suspected that method employed in cleaning vessel would prove injurious to employees. Vargas v McNamara (1979, CA1 Mass) 608 F2d 15.

Failure of employer and employer's supervisors to disassemble hammer of stabbing guide in order to facilitate repair of guide by welder who was injured by forcing himself into awkward position necessitated by presence of hammer is negligence for which welder is due compensation. Theriot v J. Ray McDermott & Co. (1984, CA5 La) 742 F2d 877, 17 Fed Rules Evid Serv 85.

Evidence was sufficient for jury to infer that captain should have known that barge on which employee slipped while using maul to cut retaining band was slippery and that it was unsafe to use maul. Colburn v Bunge Towing, Inc. (1989, CA5 Miss) 883 F2d 372.

Foreman in charge of work of unloading vessel was not negligent in giving signal to lower bucket where his cry of "all right" to engineer was sufficiently loud to be heard by all on deck. Olsen v Maine Coal & Dock Co. (1930, DC Me) 43 F2d 220.

Vessel was negligent in sending man into combustion chamber having temperature of 110 to 160 degrees from which he suffered burns. T. A. D. Jones (1934, DC Tex) 1934 AMC 329.

Plaintiff suing for injuries suffered when he missed his step while carrying heavy water hose aboard vessel and fell on ship's gangway, made out prima facie case for jury based upon defendant's negligent conduct, in that defendant should have foreseen that operation which he directed plaintiff to perform might require such speed as to induce plaintiff to attempt to carry all three sections of water hose at one time, due to fact that other crew members were preparing to remove gangplank in preparation for imminent sailing of vessel, and that weight and bulk of that burden, in combination with plaintiff's effort to hurry and his slightly built physique, might result in tripping and falling which did in fact occur. Villaneuva v California Tanker Co. (1960, DC NJ) 187 F Supp 591.

Failure of shipowner to supply some type of ladder or gangplank or other appliance to assist crew in getting off tender, and fact that shipowner directed crew to jump from bow of vessel in order to go ashore, constituted negligence under 46 USCS Appx § 688 for which seaman could recover for his injuries. Hatfield v Brown & Root, Inc. (1965, ED Tex) 245 F Supp 733.

Seaman is entitled to recover damages from employer under Jones Act, 46 USCS Appx § 688, where seaman was injured when supervisor ordered him to go aloft on oil rig under construction in inclement weather, seaman believed he had to go aloft or lose his job, and seaman's injury prevented him from working and required long-term medical treatment, because although employer was not grossly negligent, employer was 100 percent responsible for seaman's injury, and damage award must take into account lost wages and benefits, likelihood that seaman will find only low-paying job, and necessity for further surgery. Muckleroy v OPI Int'l (1993, SD Tex) 834 F Supp 937.

In action to recover brought under 46 USCS Appx § 688, nature of task which seaman undertook, hazards which it entailed, effort which it required, kind of footing seaman had, and space in which he could stand were all facts and circumstances for jury to consider in determining whether death of seaman, who acted under directions of master, was caused by negligence of master of vessel. Keough v Cefalo (1953) 330 Mass 57, 110 NE2d 919.

Ordering seaman to return to burning vessel to put out fire thereon was negligence rendering owner liable for death of seaman from explosion of compressed air tank which had no safety valve and which was welded and not riveted. Meagher v Wagner T. B. Co. (1933, Wash) 1933 AMC 175.

295. Warnings

Negligence of men in charge of tug in failing to warn deck hand carrying towline forward, and in approaching barge at unusual angle, was for determination by jury. Southern R. Co. v Colonna (1933, CA4 Va) 64 F2d 237, 1933 AMC 1165, cert den 289 US 762, 77 L Ed 1505, 53 S Ct 795.

District Court improperly retained jurisdiction and dismissed case containing Jones Act claim where, although there was no evidence that decedent was employed by defendants, plaintiffs made prima facie showing that he was borrowed servant; case should have been remanded to state court. Lackey v Atlantic Richfield Co. (1993, CA5 Tex) 990 F2d 202, reh, en banc, den (CA5) 1993 US App LEXIS 14525.

Master was not negligent in failing to warn seaman upon going to shore that viaduct was in damaged condition and unlighted, where seaman went on shore in daylight and could observe dangerous condition of viaduct. Wheeler v West India S.S. Co. (1951, DC NY) 103 F Supp 631, 1952 AMC 148, affd (CA2 NY) 205 F2d 354, 1953 AMC 1240, cert den 346 US 889, 98 L Ed 393, 74 S Ct 141.

Evidence clearly supported finding of operational negligence against shipowner due to shipowner's total failure to apprise plaintiff of hazards incident to moving barges through Gilbertsville Lock where shipowner chose to make locking maneuver at night by placing in lock chamber maximum number of barges on single trip; procedure posed unique operational problems because it was foreseeable that there would be considerable distance of downfall to pool stage, that deck crew would not be in contact or communication with each other, and that they would be working in darkness, well away from illumination provided by lock wall lights, and handling lines on barges being pulled at definite speed beyond lock gate. Smith v Flowers Transp., Inc. (1974, ND Miss) 377 F Supp 1112.

Owner of vessel has clear duty to supervise work of seamen under his command and must warn seamen of all impending dangers of which he is or should be aware, and shipowner is chargeable with knowledge, or lack of knowledge of his employees; shipowner's duty to supervise is not limited merely to inexperienced seaman, but extends to those jobs which require concerted efforts of crewmembers; duty to warn applies to all cases where employees are ignorant of peril. Smith v Flowers Transp., Inc. (1974, ND Miss) 377 F Supp 1112.

Shipowner could reasonably assume that seventeen-year-old boy was competent to cope with situation no more complicated than that presented by ordinary coal stove in small place and that boy needed no warning. Belliveau v Knutson (1952) 328 Mass 536, 105 NE2d 195.

While defendant must see that employee has reasonably safe place in which to perform his service, it is not employer's duty to warn employee directed to wash cabin of danger of falling off boat into water. Lewis v Phelps (1931) 256 Mich 646, 240 NW 60.

Failure to warn chief engineer of relief valve on cylinders in boiler room was not negligent. Patterson v Cleveland Cliffs Iron Co. (1930, Cuyahoga Co.) 37 Ohio App 316, 9 Ohio L Abs 207, 174 NE 592.

296. Miscellaneous

In action brought under 46 USCS Appx § 688, it was for jury to determine whether ship's officers should have stopped work upon finding that plaintiff seaman was moving equipment in to position which ultimately injured him. O'Connell v Naess (1949, CA2 NY) 176 F2d 138.

Advice of third mate to seaman as to quickest way to town from ship where such route traversed dangerous railroad trestle was not negligent instruction as to means of egress from ship which would make mate negligent where mate was unaware of trestle's condition and such condition was readily apparent to all who chose to use it. Dangovich v Isthmian Lines, Inc. (1964, CA2 NY) 327 F2d 355.

Vessel whose master had supplied intoxicants to likely detriment of seamen and whole crew without any supervisory control of its use, was "floating dram shop" and unseaworthy or shipowner was at least negligent. 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.

Failure of master to place seaman in protective custody after request by seaman because he feared physical violence in retaliation for telling of fight which he had witnessed constituted negligence for which seaman, consequently suffering mental breakdown, was entitled to damages. Zanca v Delta S.S. Lines, Inc. (1965, ED La) 246 F Supp 127.

b. Particular Acts Supervised

297. Keeping lookout

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

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

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

298. Navigation and maneuvering

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

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

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

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

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

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

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

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

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

299. Providing personnel and assistance

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

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

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

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

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

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

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