Maritime Death Negligence Claim Medical Treatment Employers Duty Jones Act Law

300. Rescue

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

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

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

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

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

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

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

301. --Lifesaving equipment

Duty to rescue, where seaman falls or deliberately jumps overboard but remains visible to those on board ship, arises from instant that seaman goes overboard and not only as of time seaman begins to drown or cry for help; vessel's breach of duty to rescue was established by fact that line-throwing appliance, required by Coast Guard regulations, could have been used to deliver line to seaman who had jumped overboard, regardless of fact that such appliances are not usually used to rescue men in water; however, as to whether such breach was cause of injury, District Court would be required to determine (1) whether there was time to ready and fire line-throwing appliance, had one been available, before seaman drowned; (2) whether it was reasonable to use appliance; and (3) whether actually firing line would probably in fact have saved seaman's life; in resolving causation element, such causation would be presumed and vessel would have burden of overcoming that presumption. Reyes v Vantage S.S. Co. (1980, CA5 Tex) 609 F2d 140, later app (CA5 Tex) 672 F2d 556, later proceeding (SD Tex) 575 F Supp 926, withdrawn.

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

302. Stowage

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

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

Overcrowded and foggy refrigerated vessel's hold did not constitute unsafe working place and shipowner, by permitting such condition, was not guilty of negligence proximately causing longshoreman's injuries sustained when, while assisting in unloading of ship, longshoreman was struck by spreader bar from pallet board because of lack of coordination among men performing unloading operations. Shephard v S/S Nopal Progress (1974, CA5 La) 497 F2d 963, reh den (CA5 La) 502 F2d 1167 and reh den (CA5 La) 502 F2d 1168 and cert den 420 US 937, 43 L Ed 2d 414, 95 S Ct 1147.

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

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

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

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

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

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

303. Miscellaneous

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

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

3. Medical Care

304. Generally

Shipowner owes to sick seaman duty to furnish reasonable care, including nursing and hospitalization, and failure to discharge such duty is personal injury for which seaman may maintain action under 46 USCS Appx § 688; should death result from such failure, action lies in his personal representatives. Cortes v Baltimore Insular Line, Inc. (1932) 287 US 367, 77 L Ed 368, 53 S Ct 173, 1933 AMC 9.

Owner of vessel has duty to furnish injured seaman with proper medical attention, and master represents owner with respect to that duty. The C. S. Holmes (1915, CA9 Wash) 220 F 273, later app (CA9 Wash) 237 F 785.

Duty of ship owners to provide proper medical treatment for seamen falling ill or suffering injury in service of ship is duty imposed without fault; such duty is no mere formal obligation and violation of it is actionable under 46 USCS Appx § 688. Fitzgerald v A. L. Burbank & Co. (1971, CA2 NY) 451 F2d 670, 14 ALR Fed 525.

While law imposes on officers of ship duty to exercise reasonable care to furnish such aid as ordinarily prudent persons would under similar circumstances to injured or ill seaman, ship will not be held responsible for error of judgment on part of officers, if their judgment is conscienciously exercised with reference to existing conditions. MacQueen v CG--40527, U. S. Coast Guard (1968, ED Mich) 287 F Supp 778.

Daughter's wrongful death claim under Jones Act (46 USCS Appx § 688) and Death on High Seas Act (46 USCS Appx § 761) is dismissed, where evidence shows no negligence with respect to death of sailor/father where sailor complained of headache, was given aspirin, stated that aspirin helped, retired to quarters, and could not be roused at next watch and was found to be cold, stiff, and with no pulse. Floyd v Lykes Bros. S.S. Co. (1987, ED Pa) 655 F Supp 380.

Where seaman is injured or becomes ill during voyage (not considering misconduct cases), his employer owes him duty to furnish reasonable care, including nursing and hospitalization during voyage and for reasonable time thereafter, and at least until it becomes apparent that injury or illness could not be further benefited by treatment. Premeaux v Socony-Vacuum Oil Co. (1946) 144 Tex 558, 192 SW2d 138.

305. Failure to provide treatment

Failure of captain to apply penicillin to burned seaman, although it was available, and to render first aid treatment although ship passed within mile of first-aid station, constituted negligence on part of defendant. Carr v Standard Oil Co. (1950, CA2 NY) 181 F2d 15, cert den 340 US 821, 95 L Ed 603, 71 S Ct 52.

Seaman whose injuries are aggravated by negligent failure to provide appropriate care on board ship has overlapping causes of action; he can recover full tort damages under either count for negligence under 46 USCS Appx § 688 or count for breach of maritime duty of maintenance and cure. Gaspard v Taylor Diving & Salvage Co. (1981, CA5 La) 649 F2d 372, reh den (CA5 La) 656 F2d 700 and cert den 455 US 907, 71 L Ed 2d 445, 102 S Ct 1252.

Evidence was sufficient to support jury's findings that employer negligently failed to provide adequate medical treatment to seaman and that such negligence was cause of seaman's death, where there was testimony that physician selected by employer should have ordered blood test which would have revealed seaman's diabetes and that ship's officers were negligent in failing to seek additional medical treatment for seaman following his return to ship. De Centeno v Gulf Fleet Crews, Inc. (1986, CA5 La) 798 F2d 138.

Failure of ship to furnish medical attention to injured seaman constitutes negligence for which seaman is entitled to recover. The Badger (1914, DC Va) 218 F 81; The Pennsylvania (1930, DC Or) 1930 AMC 919.

Shipowner was not negligent in not breaking radio silence and requesting doctor's advice against orders not to do so at most critical time of Japanese war. Ludwig v United States (1946, DC Wash) 74 F Supp 29.

Ship officers were not negligent in failing to call doctor for seaman who sustained fall while intoxicated even though he died few hours later of hemorrhage, if there was no evidence of serious injury from fall. Landy v United States (1951, DC Pa) 101 F Supp 486, 1952 AMC 1380, affd (CA3 Pa) 197 F2d 524, 1952 AMC 1389.

Where master was aware that seaman was having heart trouble from time he first complained of chest pain, shipowner was negligent in failing to provide seaman with proper medical treatment at time of his first heart attack and subsequent heart attack, since seaman was allowed to climb stairs, leave ship, and make his way to hospital, all without any assistance. Fair v Mississippi Valley Barge Line Co. (1965, SD Tex) 239 F Supp 158.

Ship's cook who was repeatedly refused shore leave to obtain medical care is entitled to maintenance and cure, and to attorney fees, since captain's refusal to put her ashore was callous, arbitrary and capricious. Owens v Conticarriers & Terminals, Inc. (1984, WD Tenn) 591 F Supp 777.

306. --Providing medical specialist

One way in which shipowner may be negligent in exercising his duty of providing proper medical treatment is in negligent selection of doctor, since ship's master may negligently select general practitioner when specialist is needed and available, in which case shipowner would be liable for seaman's improper treatment even though doctor selected was not personally negligent in his treatment. Central Gulf S.S. Corp. v Sambula (1968, CA5 Tex) 405 F2d 291, 16 ALR Fed 70.

Shipowner was negligent in failing to procure adequate medical attention for seaman, who had eye injured when attacked in port in which ship was docked, where blindness in that eye did not occur as result of initial blows, but only after improper diagnosis of damaged eye and failure to consult ophthalmologist; it was not necessary for plaintiff to prove that blindness would not have occurred if such conduct had been employed. Sambula v Central Gulf S.S. Co. (1967, SD Tex), 268 F Supp 1, 1968 AMC 403, affd (CA5 Tex) 405 F2d 291, 16 ALR Fed 70.

307. --Proper sick room

Where master is presumably aware of seaman's illness and places him in small, poorly ventilated, hot room, although ship's hospital room was available, seaman may recover under 46 USCS Appx § 688. Ugolini v States Marine Lines (1967) 71 Wash 2d 404, 429 P2d 213.

308. Delay in treatment

Failure to call doctor for deceased until 15 hours after arrival of ship in port showed negligence in providing reasonable medical care where leg of deceased was badly swollen and deceased was delirious. Holliday v Pacific Atlantic S.S. Co. (1952, CA3 Del) 197 F2d 610, on remand (DC Del) 117 F Supp 729, affd (CA3 Del) 212 F2d 206 and cert den 345 US 922, 97 L Ed 1354, 73 S Ct 780.

Where hospital discharged seaman on basis that hospital in another port 7 sailing hours away could better handle case of perforated ulcer and ship's departure was delayed for several hours, and captain on arrival in second port failed to call doctor for several hours and seaman died from peritonitis, captain was negligent. Poindexter v Groves (1952, CA2 NY) 197 F2d 915.

Seaman who fell and broke leg on board ship while intoxicated, but who remonstrated with superior when superior attempted to get seaman to hospital, and who was not shown to have suffered any ill effects from delay in hospitalization, is not entitled to recover. Bloomquist v T. J. McCarthy S.S. Co. (1959, CA7 Ill) 263 F2d 590.

Slight injury to seaman's finger did not require landing at some port before ship reached its destination, since it could not be fairly inferred that either seaman or engineer who extracted steel from injured finger anticipated that slight wound would amount to anything serious. Mohamed v United Fruit Co. (1935, DC Mass) 12 F Supp 1000.

309. Lack of knowledge of injury or illness

Captain of ship was not negligent in failing to give ill steward medical care where steward, although breathing heavily, never complained. 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.

310. Seaman's refusal of treatment

Shipowner will not be held liable under 46 USCS Appx § 688 where master informed first mate that he had been struck by steering wheel and retired to his cabin where he was found dead, since first mate had repeatedly asked master as to whether he desired medical assistance and each occasion master declined and but for master's refusal of medical assistance, first mate would have taken vessel to nearby port. Bourg v J. Ray McDermott & Co. (1954, La App, Orleans) 70 So 2d 225.

Where medical assistance was given in hospital, and seaman left before he was cured, there was no negligence under 46 USCS Appx § 688. Bennett v American W. A. Line (1933, NY) 1933 AMC 419.

311. Negligence of ship's doctor

Shipowner is liable in damages for harm suffered by seaman as result of any negligence on part of ship's doctor, although it exercises due care in selection of competent physician. De Zon v American President Lines, Ltd. (1943) 318 US 660, 87 L Ed 1065, 63 S Ct 814, 1943 AMC 483, reh den 319 US 780, 87 L Ed 1725, 63 S Ct 1025.

46 USCS Appx § 688 renders shipowner liable for malpractice on part of ship's doctor in treating injured seaman although owner exercised reasonable care in employment of doctor. 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.

46 USCS Appx § 688 renders shipowner liable for malpractice on part of ship's doctor in treating injured seaman although owner exercised reasonable care in employment of doctor; but no sufficient proof of negligence to warrant submission to jury of issue of negligence is presented in action under 46 USCS Appx § 688 by seaman to recover for loss of eye, when diagnosis made aboard vessel by doctor was same as that made by doctor on shore. 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.

Absent medical testimony as to virulence of disease contracted by seaman, question of whether ship's officer's negligent medical treatment of seaman resulted in his death should not have been submitted to jury. Cortes v Baltimore Insular Line, Inc. (1933, CA2 NY) 66 F2d 526.

Since medical services were provided, under contract, for shipowner as part of its operational activities, negligence of doctor can be imputed to shipowner-employer; even if ship's master took due care in selecting reputable physician to treat seaman, if that physician was negligent, shipowner would still be liable. Fitzgerald v A. L. Burbank & Co. (1971, CA2 NY) 451 F2d 670, 14 ALR Fed 525.

312. Negligence of government hospital or doctor

In action to recover for death of seaman under 46 USCS Appx § 688, question of whether public health service physician, in allegedly negligently certifying decedent as fit to work, was doing so as agent for defendant shipping corporation, was question of fact properly left to jury resolution. Perry v Union Barge Line Corp. (1970, CA3 Pa) 434 F2d 235.

313. Allowing injured or ill seaman to work

To require seaman who is sick or injured to perform work substantially detrimental to his condition is failure to provide medical care and attention to which he is entitled, unless his service is required in face of danger or emergency. The Point Fermin (1934, CA5 Tex) 70 F2d 602, 1934 AMC 662.

314. Treatment for mental condition

Negligence or competence of master was for jury determination where crew member suffering from mental disorder was given hospital ticket by master of vessel and was taken by master's order to bus station, where ticket was purchased to city in which hospital was located. Spellman v American Barge Line Co. (1949, CA3 Pa) 176 F2d 716.

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.

315. Miscellaneous

Waitress, who went to hospital for infected hand 3 days after first aid treatment with razor blade, could not recover against employer on ground of negligence, where evidence failed to show that infected hand was due to treatment on ship. Buford v Cleveland & Buffalo S.S. Co. (1951, CA7 Ill) 192 F2d 196.

Where ill seaman is put aboard another ship for repatriation to his country, and such repatriating vessel is proper means for transportation at time selected, with accomodations on board satisfying seaman's physician, no liability could be imposed upon shipowner who transferred seaman to repatriating vessel for way seaman was treated aboard repatriating vessel since treatment given seaman aboard repatriating vessel was act of independent agent, for which shipowner would not be liable under 46 USCS Appx § 688. Socony-Vacuum Oil Co. v Premeaux (1945, Tex Civ App) 187 SW2d 690, affd in part and revd in part on other grounds 144 Tex 558, 192 SW2d 138.

4. Physical Properties of Vessel and Dock

316. Generally

Law imposes upon shipowner absolute and nondelegable duty of furnishing seaworthy ship and reasonably safe equipment and appliances, and if seaman suffers injury through failure of owner to perform such duty, owner is liable to him in damages. The Osceola (1903) 189 US 158, 47 L Ed 760, 23 S Ct 483 (superseded by statute on other grounds as stated in Ivy v Security Barge Lines, Inc. (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).

Defective appliances are not per se due to negligence of employer as in other cases in admiralty, and he is not liable for any defect or insufficiency in plant or equipment that is not attributable to negligence. American Pacific Whaling Co. v Kristensen (1937, CA9 Wash) 93 F2d 17, 1938 AMC 449.

Failure of shipowner to furnish seaman safe appliances and safe place in which to work is actionable. Rey v Colonial Nav. Co. (1941, CA2 NY) 116 F2d 580.

Shipowner is not required to provide best appliance, but only appliance which is reasonably adequate. Doucette v Vincent (1952, CA1 Mass) 194 F2d 834 (disapproved on other grounds Romero v International Terminal Operating Co. 358 US 354, 3 L Ed 2d 368, 79 S Ct 468, reh den 359 US 962, 3 L Ed 2d 769, 79 S Ct 795) as stated in Mitchell v Trawler Racer, Inc. (CA1 Mass) 265 F2d 426, revd on other grounds 362 US 539, 4 L Ed 2d 941, 80 S Ct 926 (superseded by statute on other grounds as stated in Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).

Shipowner has duty to every seaman employed onboard vessel to furnish vessel with appurtenances that are reasonably fit for their intended use. Lee v Pacific Far East Line, Inc. (1977, CA9 Cal) 566 F2d 65.

Owner of vessel has unqualified duty to furnish vessel and appurtenances reasonably safe and fit for their intended use, but owner is negligent only if he fails to use reasonable care to maintain reasonably safe place to work. 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.

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.

317. --Egress and access to vessel

Ship owner has no duty to inspect dock area owned and controlled by third party before granting shore leave to crew members and to give warning of any hazards. Paul v United States (1953, CA3 Pa) 205 F2d 38, cert den 346 US 888, 98 L Ed 392, 74 S Ct 140; Anderson v Lykes Bros. S. S. (1978, DC Tex) 1978 AMC 1959.

Duty of master to provide reasonably safe means of egress and access to ship does not include viaduct over which seamen returned to ship, since duty does not extend beyond gangway of ship. 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.

Under 46 USCS Appx § 688, shipowner has nondelegable duty to furnish seamen under his employ with safe means of entering and exiting their ship, and scope of this duty extends to dock at which ship is berthed, and he must make reasonable efforts to inspect pier for hazards and to protect crew members from possible defects. Hamilton v Marine Carriers Corp. (1971, ED Pa) 332 F Supp 223.

Ship is liable for negligence in failing to provide safe means for its seamen to get from ship to shore, and fact that injury did not occur aboard ship does not prevent recovery by seamen under 46 USCS Appx § 688. Hudson Waterways Corp. v Coastal Marine Service, Inc. (1977, ED Tex) 436 F Supp 597.

Ship captain is granted summary judgment in his favor on vessel owner's liability under Jones Act (46 USCS Appx § 688), where he severely broke ankle after slipping on wet ramp at low tide attempting to board ship, even though ramp was connected to land and not owned by vessel owner, because owner has been guilty of sufficient negligence to warrant verdict for captain and its liability need not be diminished by any finding of contributory negligence. Dobrovich v Hamel (In re Aquaculture Found.) (1999, DC Conn) 63 F Supp 2d 203.

In action for injuries sustained by seaman injured when jumping from dock to vessel, it was question for jury as to whether defendant corporation in exercise of reasonable care could have provided reasonably safe means of ingress and egress. Allan v Oceanside Lumber Co. (1958) 214 Or 27, 328 P2d 327.

Obligation of shipowner to provide seaworthy vessel and proper equipment includes duty of providing proper gangway for crew. Farrell Lines, Inc. v Devlin (1956) 211 Md 404, 127 A2d 640.

318. Decks and footing

Dropping of rack on which fisherman-cook on fishing vessel was standing while bringing in fish was proximate cause of injury when fish hook struck his eye since hazards of insecure footing should not be added to his hazardous occupation. Brenha v Svarda (1961, CA9 Cal) 291 F2d 188.

Trier of the facts is to determine whether emergency and temporary continuance of slippery or other hazardous condition does or does not leave vessel reasonably suitable for her intended service; if that question is answered in negative, it is then no defense either that condition had come into existence only during voyage or, if it had, that it had not existed for sufficient length of time, from which inference might be drawn that defendant, or his servants, in exercise of due care, ought to have discovered its presence. Pinto v States Marine Corp. (1961, CA2 NY) 296 F2d 1, 1962 AMC 104, cert den 369 US 843, 7 L Ed 2d 847, 82 S Ct 874, reh den 369 US 891, 8 L Ed 2d 291, 82 S Ct 1156.

In proceeding under Jones Act, 46 USCS Appx § 688, evidence of existence of accumulation of oil, grease, and water on metal deck, which caused deck to become slippery, is sufficient for District Court to conclude that owner failed in its duty to provide its employees safe place in which to work and in its obligation to inspect work site. 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).

In action by dredging inspector against his employer and against dredging contractor under Jones Act to recover for injuries sustained when he slipped and fell while attempting to transfer from dredge to aluminum flat-boat which was used for transportation to and from job site, trial court's conclusion that plaintiff's employer failed to fulfill its Jones Act duty to provide him safe place to work was not clearly erroneous, where there was evidence that plaintiff slipped and fell because of worn, unpainted deck of flat-boat and that employer had knowledge of this defect prior to accident, but failed to remedy it; however, trial court erred in imposing liability on dredging contractor, although there was evidence to support finding that contractor was negligent in failing to provide reasonably safe means of egress from barge in form of ladder affixed to side of dredge, where there was no proof that contractor's failure to provide such ladder contributed to plaintiff's fall. Martin v Walk, Haydel & Associates, Inc. (1984, CA5 La) 742 F2d 246.

Deckhand's negligence claim arising from fall on grain barge was supported by substantial evidence that deck was unreasonably slippery, shipowner knew or should have known of grain barge danger and shipowner failed to warn deckhands. Dempsey v Mac Towing, Inc. (1989, CA11 Ala) 876 F2d 1538, 13 FR Serv 3d 1342.

Jury finding that injured seaman's employer was not negligent is upheld, even though crew was working in extremely hazardous weather conditions due to unusual ice storm in Mississippi, and employer failed to purchase and apply rock salt to decks on day seaman slipped and hurt his back, because seaman even stated that it would not be practical to salt down every passageway on tow. Sharp v Stokes Towing Co. (1998, ND Miss) 989 F Supp 791.

Vessel owner's failure to correct condition of deck on refueling barge on which there were patches of painted and unpainted areas, grooves and indentations, and uneven steel plates constituted negligence especially where it was to be expected that water and diesel fuel would get on deck during operations. Kratzer v Capital Marine Supply, Inc. (1980, MD La) 490 F Supp 222, affd (CA5 La) 645 F2d 477.

Failure to wash deck covered with coal dust and oil after unloading coal constituted negligence on part of shipowner. Becker S.S. Co. v Snyder (1929, Cuyahoga Co) 31 Ohio App 379, 166 NE 645, cert dismd 280 US 615, 74 L Ed 656, 50 S Ct 152.

Seaman is entitled to $ 227,629.34, plus taxable costs as well as prejudgment and postjudgment interest, where he sustained low back injury when he lost balance as result of having to step in exaggerated way over 10" wide stiffening member that ran parallel to bottom of door opening about 7" below same on aft side of weather bulkhead, because negligence of employer in failing to provide safe place to work and unseaworthiness of vessel were each and both legal and proximate cause of seaman's injuries. Jackson v OMI Courier Transp. (2000, SD Tex) 79 F Supp 2d 758.

319. --Food scraps

Second steward in charge of dining room could not recover for injuries sustained when heavy seas caused him to stagger on deck and which threw him against bulkhead, where evidence showed beyond dispute that accident was not caused either by slippery deck or presence of potato peelings on it as alleged in his complaint. Gelb v United States (1948, DC Cal) 75 F Supp 833.

In action to recover for injuries sustained from slipping on orange peel, eating of fruit by crew and disposal of peelings on deck when fruit was normally provided for crew were acts within scope of seamen's employment so as to make employer liable for such conduct. Adams v American President Lines, Ltd. (1944) 23 Cal 2d 681, 146 P2d 1.

320. --Grease

Grease allowed to lie on deck for two days constituted negligence, and seaman who slipped and fell fracturing his arm was entitled to damages. The Salina (1936, DC NY) 1936 AMC 1281.

Mere furnishing of sawdust which might be used by longshoremen working on vessel to correct danger from grease spots on floor was not full measure of care required. Yaconi v Brady & Gioe, Inc. (1927) 246 NY 300, 158 NE 876, cert den 276 US 636, 72 L Ed 744, 48 S Ct 421.

321. --Oil

Employer was guilty of negligence in permitting pool of oil on deck, even though somewhat greasy condition was necessarily incident to loading. Holm v Cities Service Transp. Co. (1932, CA2 NY) 60 F2d 721, 1932 AMC 1188.

Accident of officer in falling into tank was due to negligence of engineer in failing to clean oil out of tank, and officer is entitled to recover, though his own negligence in failing to see oil on which he slipped may reduce amount of his damages. Becker v Waterman S.S. Corp. (1950, CA2 NY) 179 F2d 713.

Chief mate whose duties included responsibility for safe working conditions on ship was not barred from recovery for injuries sustained when he slipped on patch of diesel oil while inspecting area of oil spill which he had ordered cleaned since he was in process of carrying out responsibility of maintaining safe working conditions when accident occurred. Stanworth v American Stern Trawlers, Inc. (1975, CA9 Wash) 523 F2d 46.

Where libellant testified that he slipped on pool of oil, negligence may be found on part of respondent. Phillips v Matson Nav. Co. (1945, DC Cal) 62 F Supp 247, 1945 AMC 940.

Owner of vessel was negligent and liable for seaman's injuries sustained as result of his slipping and falling on fishing vessel's deck which contained diesel oil, especially where oily condition of deck was not corrected despite complaints from crewmembers. Martinez v Star Fish & Oyster Co. (1974, SD Ala) 386 F Supp 560.

322. Docks and piers

Seaman who was injured when he slipped on dock several feet from foot of ladder running from dock to deck of his vessel made out prima facie case by furnishing evidence of slippery and ill-lighted place on dock which he had to traverse in order to ascend ladder upon returning to work. Marceau v Great Lakes Transit Corp. (1945, CA2 NY) 146 F2d 416, 1945 AMC 223, cert den 324 US 872, 89 L Ed 1426, 65 S Ct 1018.

Where dangerous condition of dock at foot of ladder leading from dock to deck of vessel causing seaman's injury was brought about by vessel owner's neglect in removing debris from proximity of ladder when ladder was placed near pile of debris after vessel was shifted, issue as to time necessary to clean up dock was not pertinent. Marceau v Great Lakes Transit Corp. (1945, CA2 NY) 146 F2d 416, 1945 AMC 223, cert den 324 US 872, 89 L Ed 1426, 65 S Ct 1018.

Employer was liable for plaintiff's injuries where it was undisputed that pier was covered with fish slime at time plaintiff slipped and injured himself. Jeter v Star Fish & Oyster Co. (1973, CA5 Ala) 482 F2d 457.

Defendant's duty to provide plaintiff safe place to work did not extend to plaintiff who left vessel to go on personal errand and some 400 to 600 feet from vessel stepped into hole in pier. Bates v Prudential-Grace Lines, Inc. (1972, WD Wash) 375 F Supp 774, affd by adoption of district court opinion (CA9 Wash) 497 F2d 900, cert den 419 US 1009, 42 L Ed 2d 284, 95 S Ct 329.

Barge owner was under no duty to plaintiff to inspect, care for or warn plaintiff of all conditions beyond dock and in area under storage company's exclusive control. Spearing v Manhattan Oil Transp. Corp. (1974, SD NY) 375 F Supp 764, 19 FR Serv 2d 33.

There is no duty of shipowner to inspect dock area owned and controlled by third party and seaman injured in dock area while returning from shore leave has no claim against shipowner for negligence. Anderson v Lykes Bros. S. S. (1978, DC Tex) 1978 AMC 1959.

In suit by boat captain against boat owner to recover for injuries sustained when captain slipped while jumping from boat to dock, judgment for boat owner was proper, where boat owner was not required to provide gangplank or other safe means of exit from ship, in that evidence showed that deck of boat and dock were perfectly level at time of injury, that distance between boat and dock was only one to two feet, and that no special effort was required to step from boat to dock. Guillory v Cameron Offshore Services, Inc. (1982, La App 3d Cir) 422 So 2d 592.

323. Doors

Seaworthiness of vessel is immaterial in determining liability for negligence in respect to door which closed on seaman's fingers. Howarth v United States Shipping Board Emergency Fleet Corp. (1928, CA2 NY) 24 F2d 374.

Deckhand, whose duty it was to close galley doors before rough weather, could not recover for door closing on hand in midst of rough weather. Mullen v Fitz Simons & Connell Dredge & Dock Co. (1951, CA7 Ill) 191 F2d 82, cert den 342 US 888, 96 L Ed 666, 72 S Ct 173.

324. Engines and machinery

In action for death of fireman killed in fire room of vessel, shipowner is liable where engineer had put crank of engine in reverse so that he should be ready when he got order to start, and that at that moment deceased was standing on railing which guarded machinery and had been struck when engineer put engine in reverse. Rivas v McAllister Lighterage Line, Inc. (1945, CA2 NY) 151 F2d 848, 1945 AMC 1509, cert den 326 US 787, 90 L Ed 478, 66 S Ct 480.

Boiler room on dredge was not unsafe place to work as respects fireman. Kahyis v Arundel Corp. (1933, DC Md) 3 F Supp 492.

Engineer on watch, who was injured by flying up of throttle handle while he was closing same, was entitled to recover. Adders v United States (1933, DC NY) 5 F Supp 457, 1933 AMC 1554, affd (CA2 NY) 70 F2d 371, 1934 AMC 511.

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.

Order to plaintiff to clean up engine room while engine was running did not render his employer liable for injury sustained by plaintiff while wiping grease from moving eccentrics. Bassett v New York (1935, DC NY) 13 F Supp 1022.

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.

Failure to keep engine room free from grease and other slippery substance was negligence. Bachman v United States (1947, DC Wash) 72 F Supp 298.

Location of unguarded generators on both port and starboard engines, with their rapidly moving parts and belts, one on either side of narrow passageway, coupled with lack of handrail along catwalks, constituted a hazard, making engine room an unsafe place to work and rendered vessel unseaworthy. Theall v Sam Carline, Inc. (1963, WD La) 241 F Supp 748.

325. Gangway and gangplank

In wrongful death action brought under 46 USCS Appx § 688 for death of seaman who fell from makeshift gangway, question whether hemp rope was sufficient guard rail was question of fact. Sweeney v American S.S. Co. (1974, CA6 Ohio) 491 F2d 1085.

In action under Jones Act and unseaworthiness doctrine by vessel employee to recover for injuries sustained when she slipped and broke her ankle in debarking from vessel onto dock by means of metal ramp, evidence was sufficient to support jury verdict finding that vessel owner was not negligent, that vessel was not unseaworthy, and that employee was "contributorily negligent," where, inter alia, ramp had nonskid tread and was used by crew members to go to and from vessel, where, although ramp was at slant, it could be readily negotiated, where there was no evidence of any slippery substance on ramp, it was adequately lighted, and where employee testified she did not know why she had fallen except that she was wearing "ballerina" shoes rather than her regular shoes she wore as member of crew. Thornton v Gulf Fleet Marine Corp. (1985, CA5 La) 752 F2d 1074.

Officers of liberty ship, so docked that regular gangway could not be used, who knew that shipyard gangway substituting for regular gangway was unsafe, were negligent in regard to death of cook who fell from unsafe gangway. Larsen v United States (1947, DC NY) 72 F Supp 137.

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.

Shipowner was negligent in not providing reasonably safe means of boarding vessel and was liable to widow of seaman, who drowned while attempting to board vessel at night, where seaman's vessel was not moored directly to dock but was made fast to another vessel lying between her and dock, there was no gangway from dock nor between two vessels, and lighting on dock and vessels was inadequate. Hocut v Insurance Co. of North America (1971, La App 3d Cir) 254 So 2d 108, cert den 260 La 411, 256 So 2d 292.

Where seaman, employed as waiter and room steward, was engaged in carrying baggage for passenger down gangplank which was in no way defective, and was injured without negligence on part of shipowner, trial court was ordered to dismiss 46 USCS Appx § 688 action. Finnemore v Alaska S. S. Co. (1942) 13 Wash 2d 276, 124 P2d 956.

326. Hatches

Steward injured by fall through hatch negligently left open may recover under 46 USCS Appx § 688. The J. H. Hillman (1939, CA3 Pa) 108 F2d 231, 1940 AMC 226.

Maintenance of open hatch with no lifeline about it, under black-out and unfavorable weather conditions, constituted negligence which was proximate cause of seaman's death. Johnson v Griffiths S.S. Co. (1945, CA9 Wash) 150 F2d 224, 1945 AMC 887.

Act of captain in directing that vessel be put on her course after mate had put into wind on encountering storm was not proximate cause of death of seamen swept overboard while replacing covers on hatches, but failure to properly secure such hatches before storm was proximate cause of accident. The William A. McKenney (1930, DC Mass) 41 F2d 754.

Vessel was not guilty of negligence in failing to additionally guard opening in hatchway beyond usual and routine coaming and line. The Quaker City (1931, DC Pa) 1 F Supp 840.

It was negligence to leave hatch open, unlighted, and unguarded in narrow passageway. Griffiths v Seaboard M. P. Corp. (1933, DC Md) 1933 AMC 911; The Emmy (1944, DC NY) 55 F Supp 60.

In seaman's action for personal injury sustained when he fell through open hatch, shipowner was not negligent in having hatch open to ventilate cargo of bananas on high seas in calm weather. The Matagalpa (1934, DC Pa) 9 F Supp 416, 1934 AMC 1560.

Injury to seaman who fell into lower hold was proximately caused by owner's negligence in failing to have hatch tender present. The Wichita (1935, DC NY) 1935 AMC 507.

Employer was not negligent where hatch was left open in lighted area for short time while ship shifted piers, especially where injured seaman had access to, and was familiar with details of, area in question. Henry v Moore-McCormack Lines, Inc. (1955, DC NY) 134 F Supp 71.

Normal condition, with which libellant was familiar, of raised hatchway, did not constitute either unseaworthiness or negligence. Haycraft v The Java Sea (1956, DC Ky) 143 F Supp 303.

Hatch beam, too large to fit readily, was defective instrumentality and proximate cause of injury to seaman. Golembeiski v American Hawaiian S.S. Co. (1932) 234 App Div 307, 254 NYS 576, 1932 AMC 137.

Vessel is liable for injury to seaman from falling through hatchway where officers of ship failed to make proper inspection. Wychgel v States S.S. Co. (1931) 135 Or 475, 296 P 863, cert den 284 US 625, 76 L Ed 533, 52 S Ct 11 and (ovrld on other grounds Hust v Moore-McCormack Lines, Inc. 180 Or 409, 177 P2d 429).

Provision in Corps of Engineers Safety Manual stating that all deck openings should be guarded does not have full force and effect of law and is not elevated to status of statute by incorporation by reference in Armed Services Procurement Regulations and violation of provision of Manual is not violation of safety statute. B-R Dredging Co. v Rodriguez (1978, Tex) 564 SW2d 693.

327. Hoses

In action under 46 USCS Appx § 688 to recover for injuries suffered when high pressure hose on oil production platform burst, (1) employer was negligent in failing to instruct its employees in safe procedures for hose repair, (2) engineer on vessel was negligent in allowing plaintiff to attempt to repair hose, and such negligence will be imputed to owner of vessel and (3) crew of vessel was negligent in failing to secure compressor or hose properly, and in failing to warn employer of damage caused to equipment. 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.

Breaking of steam hose while seaman was extinguishing fires preparatory to unloading oil tanker made owner liable. Tidewater Oil Co. v American S.S. Owners Mut. Protection & Indem. Ass'n. (1935) 156 Misc 367, 281 NYS 729, 1935 AMC 936.

328. Ladders

In action for injuries to seaman in falling from ladder which was splashed with oil, question whether injuries sustained were proximately caused by fall was for jury to determine. Armit v Loveland (1940, CA3 Pa) 115 F2d 308, 1940 AMC 1420.

In action by seaman for damages for injuries received when he jumped from deck of ship to dock, assuming that failure of ship to provide ladder at time and place indicated was breach of duty by owners, there was no causal relation between such negligence and injuries of plaintiff which followed. Jackson v Pittsburgh S.S. Co. (1942, CA6 Ohio) 131 F2d 668, 1943 AMC 885.

Chief engineer could not recover damages in libel in admiralty for injuries received from fall from ladder, while descending into flooded forepeak of vessel to repair pump, where there was no negligence on part of ship and alleged bend in ladder had no causal connection with accident; motion of vessel in throwing libellant from ladder while he was descending into forepeak to repair pump will not constitute negligence on part of ship. Tarkenton v United States (1948, CA4 Va) 169 F2d 171.

Plaintiff assigned to load molasses aboard defendants' barge, who fell and hurt elbow while descending ladder furnished by persons other than defendants, when it became disconnected and collapsed, may recover under 46 USCS Appx § 688 even though defendants failed to provide ladder themselves. Sanford v Caswell (1953, CA5 Fla) 200 F2d 830, cert den 345 US 940, 97 L Ed 1366, 73 S Ct 831.

Vessel was not negligent in regard to formerly intoxicated seaman who walked straight coming on board and who did not seem to need assistance, who was seen imbibing after coming aboard, and who fell down ladder found to be seaworthy, at a time when he should not have been intoxicated because it was his turn to go on watch. Bloomquist v T. J. McCarthy S.S. Co. (1959, CA7 Ill) 263 F2d 590.

Where seaman, in attempting to leave barge and transfer to crewboat, was required to step from ladder welded to side of barge onto rail of crewboat and then jump onto wet afterdeck of crewboat while both vessels were underway in heavy sea, owner of barge was negligent in failing to supply reasonably safe egress for crewmen and consequently liable to seaman for injuries which he received in fall on deck of crewboat. Massey v Williams-McWilliams, Inc. (1969, CA5 La) 414 F2d 675, cert den 396 US 1037, 24 L Ed 2d 681, 90 S Ct 682 and on remand (ED La) 317 F Supp 37.

In action by dredging inspector against his employer and against dredging contractor under Jones Act to recover for injuries sustained when he slipped and fell while attempting to transfer from dredge to aluminum flat-boat which was used for transportation to and from job site, trial court's conclusion that plaintiff's employer failed to fulfill its Jones Act duty to provide him safe place to work was not clearly erroneous, where there was evidence that plaintiff slipped and fell because of worn, unpainted deck of flat-boat and that employer had knowledge of this defect prior to accident, but failed to remedy it. However, trial court erred in imposing liability on dredging contractor, although there was evidence to support finding that contractor was negligent in failing to provide reasonably safe means of egress from barge in form of ladder affixed to side of dredge, where there was no proof that contractor's failure to provide such ladder contributed to plaintiff's fall. Martin v Walk, Haydel & Associates, Inc. (1984, CA5 La) 742 F2d 246.

Furnishing accommodation ladder, with capacity for 3 or 4 men, for hoisting of 10 men to deck of the ship, as result of which ladder broke, was negligence. The Estrella (1933, DC NY) 2 F Supp 258, affd (CA2 NY) 67 F2d 991, 1933 AMC 1562.

Seaman injured by breaking of rotten Jacob's ladder was entitled to recover. The Phoenix (1933, DC Tex) 3 F Supp 1017, 1933 AMC 527.

Vessel owner was not liable for injuries sustained by seaman who fell to dock while going aboard by way of ladder not shown to have been insecure. The S.S. Berwindglen (1936, DC Mass) 14 F Supp 992, 1936 AMC 566, affd in part and revd in part on other grounds (CA1 Mass) 88 F2d 125, 1937 AMC 347.

Even if libellant fell when metal cleat supporting cargo battens broke, he could not recover from owner of vessel, since cargo battens were not intended to be used as ladders. Sulsenti v Cadogan S.S. Co. (1943, DC NY) 54 F Supp 570.

Where fall of seaman in climbing ship ladder could be due just as likely to his intoxicated state as to loose rung in ladder, liability will not be imposed on such mere speculation. Landy v United States (1951, DC Pa) 101 F Supp 486, affd (CA3 Pa) 197 F2d 524.

Seaman is awarded $ 211,545.30 for pain, suffering, loss of enjoyment of life, loss of income, and cost of retraining for knee injury which left him partially permanently disabled, where seaman slipped and fell while descending steep steps from wheelhouse to galley, because 3-legged lift vessel was unseaworthy due to absence of non-skid tape or some other appropriate skid-resistant surface on steps. Courville v Cardinal Wireline Specialists, Inc. (1991, WD La) 775 F Supp 929.

329. Life-saving devices and procedures

If lifeboats were carried on vessel in full conformity with coast guard regulations, negligence in manner in which they were carried was not shown to have proximately resulted in seaman's negligence when vessel was torpedoed. Ryan v United States (1945, CA3 Pa) 150 F2d 366, 1945 AMC 690.

Duty of ship and its owner to rescue seaman overboard necessarily implies duty to provide means of rescue which include effective lifeboat and available life preservers or life rings; and such duty is not performed unless preservers or rings are available; they must be so placed on vessel as to be ready for instant use when needed. Sadler v Pennsylvania R. Co. (1947, CA4 Va) 159 F2d 784, 1947 AMC 636.

Failure to have adequate livesaving equipment available on decks of barges is negligence. Sadler v Pennsylvania R. Co. (1947, CA4 Va) 159 F2d 784, 1947 AMC 636.

Shipowner owes obligation to effect prompt and proper rescue to seaman injured in performance of his duties aboard ship, and seaman who undertakes such rescue is acting within scope of his employment, employer being liable for his actions if rescue operation is conducted negligently. Salem v United States Lines Co. (1961, CA2 NY) 293 F2d 121, 1962 AMC 1464, affd in part and revd in part 370 US 31, 8 L Ed 2d 313, 82 S Ct 1119, 1962 AMC 1456, reh den 370 US 965, 8 L Ed 2d 834, 82 S Ct 1578 and on remand (CA2) 304 F2d 672.

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).

Defendant shipowner's negligence in failing to provide statutorily required rescue equipment must have contributed to death of seaman since it was shown that several crewmembers saw decedent encounter strong currents while swimming and could have discharged linethrower, had it been available. 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.

Owner of vessel has duty of providing lifesaving apparatus and of rescuing seaman who has fallen overboard. The G. W. Glenn (1933, DC Del) 4 F Supp 727, 1934 AMC 90.

Legal obligation rests upon ship to use due diligence to save crew members who by his own neglect, falls into sea, and owners are liable if, by failure to perform this duty, his life is lost. Macomber v De Bardeleben Coal Co. (1942) 200 La 633, 8 So 2d 624, 1942 AMC 816, cert den 317 US 661, 87 L Ed 532, 63 S Ct 61.

330. Lights

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.

Where there was reasonable inference from evidence that in attempting to go from one car float to another, cook fell between them as result of defective lighting, and there was nothing to indicate that he was shoved or pushed overboard, or that he was intoxicated, or that he was attempting to commit suicide, cause of fall can not be said to be speculative. Sadler v Pennsylvania R. Co. (1947, CA4 Va) 159 F2d 784, 1947 AMC 636.

It was negligence to leave hatch open, unlighted, and unguarded in narrow passageway. Griffiths v Seaboard M. P. Corp. (1933, DC Md) 1933 AMC 911; The Emmy (1944, DC NY) 55 F Supp 60.

331. --Blackout conditions

Where harbor blackout regulations were in force at time of accident, shipowner will not be held negligent and liable for pantryman returning from shore leave mistaking coal chute for gangway and falling into water. Walton v Continental S.S. Co. (1946, DC Md) 66 F Supp 836.

332. Lines and rigging

Use of new rope, without testing it, in job normally requiring much heavier rope, may constitute negligence. Nolan v General Seafoods Corp. (1940, CA1 Mass) 112 F2d 515.

Death of deceased when struck in face by taut towline was due to negligence of master in allowing towline to become taut without proper signal from deceased. Coyle Lines, Inc. v Dugas (1952, CA5 La) 196 F2d 59.

Recoil of broken mooring line which caused injury to crewmember was forseeable and constituted negligence where lines were used undoubled to test flotation of vessel in salvage operation undertaken in open turbulent waters over 50-foot distance. 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).

Seaman was not entitled to recover damages due to tripping over hauser on well deck, if he was not required to travel over well deck and hauser was not in pathway. Wills v Keystone Tankship Corp. (1952, DC Cal) 109 F Supp 650.

Captain of vessel was negligent when he was aware of dangerous propensities of line which injured plaintiff seaman but failed to advise seaman and then acted himself in manner which could have been calculated to have been dangerous. Pedersen v Diesel Tankers, Ira S. Bushey, Inc. (1967, SD NY) 280 F Supp 421.

Under Jones Act, 46 USCS Appx § 688, vessel is negligent where her mooring lines were not slacked off properly. Western Tankers Corp. v United States (1975, SD NY) 387 F Supp 487.

Use of worn and frayed line can constitute negligence by shipowner. Paulsen v McDuffie (1935) 4 Cal 2d 111, 47 P2d 709.

333. Protective and safety equipment

Trial court did not err in allowing jury to determine, in absence of supporting testimony by expert in naval architecture, claim that shipowner failed to equip his ship with necessary and feasible safety devices to prevent mishap which befell seaman, who was injured in fall in ship's radar tower while ascending to crow's-nest located therein. Salem v United States Lines Co. (1962) 370 US 31, 8 L Ed 2d 313, 82 S Ct 1119, 1962 AMC 1456, reh den 370 US 965, 8 L Ed 2d 834, 82 S Ct 1578 and on remand (CA2) 304 F2d 672.

Plaintiff may recover under 46 USCS Appx § 688 for injuries sustained while serving at sea where he was required to use defective paint spray gun without being furnished mask, since even though orders of chief officer required him to work with unsafe tools or under unsafe conditions, plaintiff was obliged to obey orders and did not assume any risk for obedience to orders. Darlington v National Bulk Carriers, Inc. (1946, CA2 NY) 157 F2d 817.

Liability under 46 USCS Appx § 688 could be established by evidence showing that shipowner's negligence played part in producing injury to seaman by way of aggravation of known pre-existing injury where shipowner ordered seaman to enter and clean mud tank in submersible drilling barge containing caustic substances without providing protective equipment such as boots. White v Rimrock Tidelands, Inc. (1969, CA5 La) 414 F2d 1336, 13 FR Serv 2d 1082.

Failure of vessel to be equipped with safety appliance required by Coast Guard regulations, where decedent seaman was meant to be beneficiary of protective regulations, and where regulations were intended to protect against risk of kind of harm that occurred, was negligence per se; violation of safety statute may be excused where noncompliance was due to emergency situation, or where compliance would be more dangerous than noncompliance. 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.

Suit for injuries due to failure to provide guard for blower fan is based on negligence to which 46 USCS Appx § 688 applies. Mikkelson v Pacific S.S. Co. (1930, DC Wash) 46 F2d 124, 1931 AMC 423.

Failure to secure plank or provide guard line for wiper painting bulkhead was negligence. Antietam (1933, DC Pa) 1933 AMC 633.

334. --Fire extinguishers

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.

Lack of fire extinguisher was not proximate cause of injury to seaman where presence of such extinguisher would have had no usefulness in preventing injuries to seaman after fire started. The New Dawn (1930, DC Me) 36 F2d 970.

335. --Goggles

Chief engineer on vessel was not guilty of negligence in directing his assistant to remove screw which required use of chisel, in performing which piece of metal flew into assistant's eye, especially where use of goggles was impractical or even dangerous given fact that steam would have fogged them. The Mangore (1932, DC Md) 1 F Supp 138, affd (CA4 Md) 62 F2d 616, 1933 AMC 229.

Vessel was at fault in failing to supply seaman with goggles to chip rust. The Wytheville (1933, DC Pa) 1933 AMC 1427.

Failure to provide goggles for protection of seamen's eyes in doing of certain engineroom work constituted negligence. Joseph P. Duffy v United States (1934, DC NY) 1934 AMC 1268.

Order or directions of boatswain to seaman to go ahead with chipping rust pending further search for goggles constituted some negligence on part of ship. Haddock v North Atlantic & Gulf S.S. Co. (1948, DC Md) 81 F Supp 421.

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.

In action by seaman under 46 USCS Appx § 688 for injury to his eye while employed to scrape and paint rust from underside of deck, defendant was negligent in ordering seaman to proceed with his work without being equipped with goggles where defendant knew or should have known that no goggles were available for seaman. McCauley v Pacific Atlantic S.S. Co. (1941) 167 Or 80, 115 P2d 307.

336. Quarters

Shipowner's duty under 46 USCS Appx § 688 extends to providing safe quarters for crew. Rey v Colonial Nav. Co. (1941, CA2 NY) 116 F2d 580.

Shipowner's duty to provide safe quarters for seaman includes maintaining them in condition not so excessively damp as to injure his health. Hern v Moran Towing & Transp. Co. (1943, CA2 NY) 138 F2d 900.

Where sickness of seaman might have been caused by wetting he received in line of duty or might have been due entirely to dampness of his bunk and quarters, or to both, he was not bound to prove, in action under 46 USCS Appx § 688, that exposure in his quarters was sole cause of his sickness, since both possible causes were of same general kind and could have been mutually contributing factors; shipowner was not liable to indemnified seaman for any sickness caused by exposure to moisture when putting on plate to close ventilating duct to forecastle, since that was in line of duty, but was liable for any aggravation thereof caused by furnishing damp and poorly ventilated sleeping quarters. Hern v Moran Towing & Transp. Co. (1943, CA2 NY) 138 F2d 900.

Maintenance of improperly ventilated living quarters for member of ship's company constitutes negligence; if defendant's negligence in furnishing badly ventilated sleeping quarters aggravated active tuberculosis, plaintiff was entitled to recover. Hiltz v Atlantic Refining Co. (1945, CA3 Pa) 151 F2d 159.

337. Railings

Negligence in respect to securing stanchions supporting chain rail, which gave way when wave swept seaman against rail, was jury question. Grant v United States Shipping Board Emergency Fleet Corp. (1927, CA2 NY) 22 F2d 488.

In suit by ship carpenter against United States to recover damages for injuries sustained from fall on board government owned ship, failure of government to maintain safety rope along left side of bulkhead near tank into which plaintiff fell was negligence and contributed to injury since presence of such rope would have warned seaman of tank. Desrochers v United States (1939, CA2 NY) 105 F2d 919, 1940 AMC 1392, cert den 308 US 519, 84 L Ed 441, 60 S Ct 180.

Defective condition of catwalk and railing in lacking proper rope and hand railing may constitute negligence. Pollard v Seas Shipping Co. (1945, CA2 NY) 146 F2d 875.

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 injury sustained from fall was proximate result of shipowner's negligence in permitting chain rail to remain slack. Helmke v United States (1934, DC La) 8 F Supp 521.

Need for guard rail on dredge to protect employees from injury arising from contact with machinery of dredge was question for jury. Pariser v New York (1645, CA2 NY) 146 F2d 431, 1945 AMC 133.

338. Stevedoring equipment

It is duty of vessel to furnish loading tackle free from defects. Fauntleroy v Argonaut S.S. Line, Inc. (1928, CA4 Md) 27 F2d 50, 1928 AMC 1193; The Mercier (1933, DC Or) 5 F Supp 511, 1934 AMC 291, affd (CA9 Or) 72 F2d 1008, 1935 AMC 225.

Officers of vessel must use reasonable care to furnish stevedores with reasonably safe appliances to work with; if such appliances become defective through use while in charge of stevedores, officers must have knowledge of that fact before any duty of replacement arises. Bryant v Vestland (1931, CA5 Ga) 52 F2d 1078.

Use by boss stevedore of dry fall (hoisting rope) was proximate cause of his death by kinking of fall. De Luca v Shepard S.S. Co. (1933, CA2 NY) 65 F2d 566, 1933 AMC 932, mod (CA2 NY) 67 F2d 437, 1933 AMC 1640, and cert den 291 US 685, 78 L Ed 1072, 54 S Ct 562.

Vessel owes duty to longshoreman employed by independent contractor of using reasonable care to furnish him reasonably safe appliances to work with in handling cargo of ship. Glover v Compagnie Generale Transatlantique (1939, CA5 Tex) 103 F2d 557, 1939 AMC 695, cert den 308 US 550, 84 L Ed 462, 60 S Ct 83.

Ship was not liable for injury to longshoreman from improper management of proper appliances furnished to stevedoring company for loading. The Henry S. Grove (1927, DC Md) 22 F2d 444.

As to overhead tackle and machinery, ship is not insurer but is bound to use highest degree of care under circumstances. The Mercier (1933, DC Or) 5 F Supp 511, 1934 AMC 291, affd (CA9 Or) 72 F2d 1008, 1935 AMC 225.

339. Tools

Issue of unseaworthiness and negligence was for jury where seaman used cold chisel and hammer to cut off end of turnbuckle when he could not obtain proper tool with which to do work. Street v Isthmian Lines, Inc. (1963, CA2 NY) 313 F2d 35, 1963 AMC 583, cert den 375 US 819, 11 L Ed 2d 53, 84 S Ct 55.

Furnishing seaman with defective spray gun constituted negligence. The Tawmie (1935, DC Tex) 11 F Supp 461, 1935 AMC 323, mod (CA5 Tex) 80 F2d 792, 1936 AMC 110.

Lack of can-opener and necessity to use meat cleaver to open can of milk did not constitute negligence. Neville v American Barge Line Co. (1952, DC Pa) 105 F Supp 405, affd (CA3 Pa) 218 F2d 190, 1955 AMC 194; Neville v American Barge Line Co. (1952, DC Pa) 105 F Supp 408.

Under 46 USCS Appx § 688 seamen are bound to use tools provided for them and may recover for injuries received in course of their employment resulting from owner's negligent failure to furnish reasonable, safe, suitable, or proper equipment. Maldonado v Lykes Bros. S.S. Co. (1940, Tex Civ App) 142 SW2d 544, writ dism.

340. --Best tool not required

Employer is not required under 46 USCS Appx § 688 to supply best tools but only tools which are reasonably safe and suitable. Jacob v New York City (1942) 315 US 752, 86 L Ed 1166, 62 S Ct 854.

Employer was not required to furnish best and safest possible tools for disassembling engine, but his duty was discharged by furnishing tools which were reasonably safe and fit for purpose for which they were used. McGeorge v Charles Nelson Co. (1934) 136 Cal App 638, 29 P2d 426, cert den 293 US 554, 79 L Ed 656, 55 S Ct 97.

Shipowner is not under duty to supply very best tool to accomplish task, he need only supply reasonably safe tool. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.

341. --Simple tool doctrine

Only possible basis for simple tool doctrine which is compatible with provisions and policy of 46 USCS Appx § 688 is that master is not negligent in case of defective simple tools because possibility of injury from such tools is so slight as to impose no duty on him to see that they are free from defects in first instance or to inspect them thereafter; employer is not required under 46 USCS Appx § 688, imposing liability for defects in equipment due to negligence, to supply best tools but only tools which are reasonably safe and suitable. Jacob v New York City (1942) 315 US 752, 86 L Ed 1166, 62 S Ct 854.

Simple tool doctrine does not apply where defect was caused or its cause was contributed to by master. Carvalho v Fregata (1941, DC Mass) 42 F Supp 404.

Under 46 USCS Appx § 688, duty of employer is to furnish reasonably safe and suitable simple tools. Sawyer v California Tanker Co. (1957, DC NJ) 147 F Supp 324.

342. Walkways and catwalks

One employed 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 his injuries in action under 46 USCS Appx § 688. Braen v Pfeifer Oil Transp. Co. (1959) 361 US 129, 4 L Ed 2d 191, 80 S Ct 247.

Vessel having acquiesced in custom of deck hands to use walkway should have taken care to make such walkway safe as far as circumstances would permit, though there was safer way which might have been used. Southern R. Co. v Hermans (1930, CA4 Va) 44 F2d 366, 1931 AMC 175.

Defective condition of catwalk and railing in lacking proper rope and hand railing may constitute negligence. Pollard v Seas Shipping Co. (1945, CA2 NY) 146 F2d 875.

It was negligence to leave hatch open, unlighted, and unguarded in narrow passageway. Griffiths v Seaboard M. P. Corp. (1933, DC Md) 1933 AMC 911; The Emmy (1944, DC NY) 55 F Supp 60.

Where plaintiff-seaman left barge to go ashore to obtain instructions regarding discharge of barge's cargo of oil as well as to obtain drinking water and fell by improper walkway while walking between tanks owned by storage company, barge owner breached no duty to plaintiff which would constitute negligence; barge owner was under no duty to plaintiff to inspect, care for, or warn plaintiff of all conditions beyond dock and in area under storage company's exclusive control. Spearing v Manhattan Oil Transp. Corp. (1974, SD NY) 375 F Supp 764, 19 FR Serv 2d 33.

343. Miscellaneous

Ship and owner must use proper diligence to provide safe place for night watchman to work. The Valdarno (1926, CA5 Ala) 11 F2d 35.

In suit pursuant to 46 USCS Appx § 688 to recover damages for death of decedent killed in performance of his duties as gunman on defendant's whaling boat, question whether break in gun was caused by overheating in welding process, was properly left to jury when there was evidence tending to support this inference. American Pacific Whaling Co. v Kristensen (1937, CA9 Wash) 93 F2d 17, 1938 AMC 449.

Want of statutory requirement for splash plates on tug engine and certificate of government inspection and approval do not relieve owners of tug for proven negligent conduct and from performing common-law duty to furnish seamen with safe place to work. Armit v Loveland (1940, CA3 Pa) 115 F2d 308, 1940 AMC 1429.

Case was properly submitted to jury on issues of whether defendant failed in its duty to furnish grain handlers with reasonably safe place to work and means of egress from holds, and whether plaintiff himself was guilty of negligence which contributed to accident. Coffey v Nicholson Transit Co. (1943, CA2 NY) 138 F2d 915, 1944 AMC 78.

Negligence in failing to properly install radio transmitter imposes liability for failure to provide fairly safe place to work, and failure to properly maintain after proper installation imposes responsibility under 46 USCS Appx § 688 where transmitter came loose during storm and struck radio operator, inflicting injury. Brislin v United States (1947, CA4 Md) 165 F2d 296.

Seaman injured by defective dumbwaiter in ship may bring products liability suit in admiralty court against manufacturer of dumbwaiter. 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).

Seaman injured when wire struck him in eye when he quickly stepped aside to avoid grab bucket of cargo negligently allowed to swing over place where he was ordered to work will make owner liable. The Lafcomo (1932, DC NY) 1932 AMC 196.

Under Jones Act, 46 USCS Appx § 688, ship owner is negligent in permitting elevator lift safety rope to become useless through neglect of maintenance. Imanuel v Lykes Bros. S.S. Co. (1976, SD NY) 430 F Supp 18, affd (CA2 NY) 566 F2d 368.

Seaman established defendant's total liability by preponderance of evidence, where seaman who injured his elbow when he slipped while attempting to open valve, needed to use wheel wrench to complete opening of valve from lower wheel and relief chief mate instructed seaman to use wheel wrench for purpose for which it should not have been necessary. Williams v United States (1989, SD NY) 712 F Supp 1132.

Seaman who alleged that he was victim of excessive mandated overtime, together with abuse and harassment by his superior officers and other crew members, could not recover for negligent infliction of emotional distress under 46 USCS Apx § 688, absent allegation that he was within any "zone of danger" in which he witnessed peril or harm to another and was himself threatened with physical harm. Yballa v Sea-Land Servs. (1995, DC Hawaii) 937 F Supp 1428.

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.

Evidence showing that heat regulator in the pilothouse was defective and that the door to the pilothouse stuck and could be opened only with great effort, both of which defects had existed for some time and had not been remedied, was sufficient to show negligence on the part of employer. Boudreau v Boat Andrea G. Corp. (1966) 350 Mass 473, 215 NE2d 907, 1966 AMC 1270.

5. Other Circumstances

344. Intoxication

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.

Although contributory negligence of intoxicated seaman who drowned after deliberately jumping overboard should be measured in computing damages under Jones Act (46 USCS Appx § 688), facts that vessel operated floating dram shop and that use of intoxicants obtained therefrom was not supervised require that vessel bear at least part of fault for seaman's negligence which would preclude finding that seaman was 100 percent contributorily negligent. Reyes v Vantage S.S. Co. (1980, CA5 Tex) 609 F2d 140, later app (CA5 Tex) 672 F2d 556, later proceeding (SD Tex) 575 F Supp 926, withdrawn.

Shipowner was liable where intoxicated seaman was left on wharf in helpless condition by seaman, co-employee, who had offered to assist intoxicated seaman in reaching ship. McDonough v Buckeye S.S. Co. (1951, DC Ohio) 103 F Supp 473, 1951 AMC 2042, affd (CA6 Ohio) 200 F2d 558, 1953 AMC 343, cert den 345 US 926, 97 L Ed 1357, 73 S Ct 785.

345. War conditions

Maintenance of open hatch with no lifeline about it, under black-out and unfavorable weather conditions, constituted negligence. Johnson v Griffiths S.S. Co. (1945, CA9 Wash) 150 F2d 224.

Captain of vessel operated by War Shipping Administration was not negligent in not streaming or at least requesting permission from convoy commodore to stream nets because of danger of submarine in area, where he did not know that torpedo nets were effective against aerial torpedoes by which messman was injured. Fraser v United States (1948, CA1 Mass) 167 F2d 141, 1948 AMC 636.

Where ship of American registry carrying war materials to British was in Egyptian port at time of German air raid, failure of master to light up ship or to send crew aboard was not negligence with respect to vessel's liability to seaman injured by bombing. Lewis v American-Hawaiian S.S. Co. (1943, DC NY) 49 F Supp 127, 1943 AMC 359.

Steamships, in time of war, in order to make ship seaworthy or in order to exercise due care toward some injured seaman, were not required to have on board doctor licensed to practice medicine; failure to break radio silence imposed by wartime orders, to attempt to obtain doctor's advice on treatment for injured seaman, was not negligence. Ludwig v United States (1946, DC Wash) 74 F Supp 29.

In action under 46 USCS Appx § 688 for injuries received by plaintiff seaman when abandoning ship after it was torpedoed and shelled by enemy submarine, failure on part of defendant to arm vessel was not proximate cause of plaintiff's injuries. Socony Vacuum Oil Co. v Henson (1944, Tex Civ App) 183 SW2d 256, writ ref.

346. Weather-related injuries

Steamer was negligent in failing to stand by until pilot association boat had come up, after putting off pilot in heavy weather, since steamer has duty to assist pilot boat in placing pilot on board. The Black Gull (1936, CA2 NY) 82 F2d 758, cert den 298 US 684, 80 L Ed 1404, 56 S Ct 954.

No liability flows from requiring sailor to perform his necessary sailor's duties with ship rolling and lurching in heavy storm, even though he may be injured from fall caused by wave sweeping across deck. Matson Navigation Co. v Hansen (1942, CA9 Cal) 132 F2d 487.

Standard of care required of captain, in case concerning captain's actions during storm, is that which would be used by reasonably careful and prudent master of fishing vessel in business then at hand. Roberts v United Fisheries Vessels Co. (1944, CA1 Mass) 141 F2d 288, 1944 AMC 599, cert den 323 US 753, 89 L Ed 603, 65 S Ct 81.

When in action under 46 USCS Appx § 688 for death of dory fishermen, negligence of captain in not calling men back when storm came up or during its continuance was claimed, jury could properly find that captain acted as reasonable and prudent skipper of fishing vessel fulfilling obligation resting upon him and exonerating owner of vessel. Roberts v United Fisheries Vessels Co. (1944, CA1 Mass) 141 F2d 288, 1944 AMC 599, cert den 323 US 753, 89 L Ed 603, 65 S Ct 81.

District Court finding that diver, injured during dive undertaken when seas were rough, with 6 to 8 foot swells, was not contributorily negligent was not clearly erroneous in light of fact that diver's duty to protect himself required that he exercise only slight, not ordinary, care. Pickle v International Oilfield Divers, Inc. (1986, CA5 La) 791 F2d 1237.

There was negligence in ordering seaman to plug ventilator in heavy seas without reducing ship's speed, and owner is liable for wrongful death of seaman swept overboard. The Antinous (1930, DC Fla) 1930 AMC 1551, mod (CA5 Fla) 49 F2d 762, 1931 AMC 1056.

To send seaman to forecastle in storm to secure canvas covers of hawse pipes is negligence. The Parismina (1932, DC Tex) 1932 AMC 1322.

Vessel is not unseaworthy because it had no cargo in its holds when it left port in hurricane weather inasmuch as harbor master ordered captain to leave port and captain made best choice by choosing to obey harbor master's order. Re Complaint of Molai Shipping Corp. (1983, SD NY) 569 F Supp 523.

Chief engineer failed to establish that captain of vessel was negligent in suit brought pursuant to 46 USCS Appx § 688, where engineer was injured in fall allegedly owing to violent roll of ship in heavy seas, and alleged in suit that captain was negligent in allowing himself to be relieved of watch prior to entering heavy seas, and although engineer's expert witness testified that he would not have allowed himself to be relieved in such circumstances, he offered no testimony that captain's decision deviated from prevailing practice in maritime community, and testified that it was prevailing practice on seagoing vessels for captain to leave night orders to deck watch officers. Smith v United States (1996, DC RI) 943 F Supp 159, 1996 AMC 2570.

Summary judgment in favor of seaman is entered on issue of unseaworthiness, where he was injured when volleyball-size piece of ice fell from boom of crane and landed on his hand, because he has established as matter of law that accumulation of ice on boom rendered crane, and fishing vessel, unseaworthy. Gapay v Q & S Enters. (2000, DC Alaska) 133 F Supp 2d 1139, 2000 AMC 1910.

It was negligence for master of fishing vessel to attempt to make port in storm when prudent decision would have been to lay to and ride out storm. (1966) Petition of Risdal & Anderson, Inc. (1966, DC Mass) 248 F Supp 928, 1966 AMC 713.

Negligence of vessel in failing to reduce speed and in failing to stretch lifelines to protect crew, while they were in act of securing cargo during heavy sea, squarely presented jury question. Peterson v Pacific S. S. Co. (1927) 145 Wash 460, 261 P 115, affd 278 US 130, 73 L Ed 220, 49 S Ct 75.

347. Miscellaneous

Appellee shipowner was not liable under 46 USCS Appx § 688 for abandoning arrested seaman and permitting him to "take the rap" for possession of marijuana; such act cannot be considered abandonment imposing liability on appellees; abandonment stems from "master's obligation implied in shipping contract, to bring seaman back with him unless he has been left at foreign port because of illness, discharge before American consul, desertion or failure to join." Faraola v O'Neill (1978, CA9 Cal) 576 F2d 1364.

Jones Act (46 USCS Appx § 688) liability is sufficiently established where employer's supervisor did not notify others of barge placement or inquire where it was placed, and another employee subsequently collided with it while making nighttime inspection in powerboat. Verrett v McDonough Marine Service (1983, CA5 La) 705 F2d 1437.

Widow of deceased seaman who brought action against owners, charterers, and/or operators of vessel pursuant to 46 USCS Appx § 688 alleging unseaworthiness failed to make out case justifying submission to jury where no proof was offered that deceased returned to vessel or its proximity at any time before being discovered drowned in harbor; any jury verdict based on connection between defendants' alleged negligence and/or unseaworthiness and death of seaman would necessarily be product of sheer surmise, conjecture and speculation. Charles v West Indies Transport (1986, DC Puerto Rico) 631 F Supp 1023.

Judgment is entered in favor of cadet against vessel owner for personal injuries received in accident that occurred when chief officer of vessel was intoxicated, lost control of automobile, and crashed, where owner was obligated to provide cadet and officer with meals, but at time of accident, they were driving into town for food because ship's mess had closed, because even if cadet and officer were not acting within scope of their employment as Jones Act seamen, officer was acting as owner's agent for purposes of providing transportation and owner is liable for officer's negligence under respondeat superior theory. Thier v Lykes Bros. (1995, ND Tex) 900 F Supp 864.

Genuine issues of material fact existed as to whether owner of riverboat casino reasonably could have foreseen that swinging door on slot machine could injure employee conducting hopper fill, or whether patron's push on door was unforeseeable and intervening cause of casino worker's injury, precluding summary judgment in favor of owner on worker's claim under 46 USCS Appx § 688(a). Moreno v Grand Victoria Casino (2000, ND Ill) 94 F Supp 2d 883, 10 AD Cas 1113, 2000 AMC 1379.

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.