351. Application to state proceedings

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

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

352. Seaman's duty and standard of conduct

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

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

While seaman's duty to protect himself is slight, duty does exist; contributory negligence is available to mitigate vessel owner's liability when injured seaman has been negligent in breaching duty to act or refrain from acting; seaman generally has no duty to find safest way to perform his work, but where it is shown that there existed safe alternative available of which he knew or should have known, seaman's course of action can be properly considered in determining whether he was negligent. Thezan v Maritime Overseas Corp. (1983, CA5 La) 708 F2d 175, cert den 464 US 1050, 79 L Ed 2d 189, 104 S Ct 729.

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

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

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

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

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

353. --Considerations of age and experience

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

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

354. Employer's violation of safety rules

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

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

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

355. Performance of supervisory functions

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

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

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

356. Obedience to orders

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

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

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

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

357. Failure to protest, report, or remedy dangerous condition

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

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

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

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

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

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

If seaman does not have duty to remedy allegedly dangerous condition, his injury arising from such condition even if allegedly partially caused by his own negligence in not rectifying dangerous condition, will not be considered in seaman's suit for his injury. Petressen v American President Lines, Ltd. (1944, City Ct) 48 NYS2d 757 (city court); Carlson v Wheeler-Hallock Co. (1943) 171 Or 349, 137 P2d 1001; Beauchamp v Sause Bros. Ocean Towing Co. (1973) 267 Or 106, 514 P2d 1346.

2. Assumption of Risk

358. Generally

Assumption of risk is no defense under 46 USCS Appx § 688. The Arizona v Anelich (1936) 298 US 110, 80 L Ed 1075, 56 S Ct 707, reh den 298 US 692, 80 L Ed 1409, 56 S Ct 945.

Seaman does not assume risk of injury, unless risk was so dangerous that no man of ordinary prudence would have obeyed order. Coast S.S. Co. v Brady (1925, CA5 Ala) 8 F2d 16, cert den 269 US 578, 70 L Ed 421, 46 S Ct 103.

As seaman cannot quit his employment, he does not assume risk of negligence of those in charge of ship by which his place of work is made unsafe, and he does not assume risk of failure to take such precautions as perils of sea make necessary and reasonable. States S.S. Co. v Berglann (1930, CA9 Or) 41 F2d 456, 1930 AMC 1392, cert den 282 US 868, 75 L Ed 767, 51 S Ct 75.

Defendant cannot avoid effect of his negligence by pleading assumption of risk since amendment of 45 USCS § § 51 et seq. abolished such defense. The Black Gull (1936, CA2 NY) 82 F2d 758, cert den 298 US 684, 80 L Ed 1404, 56 S Ct 954; Roberts v United Fisheries Vessels Co. (1944, CA1 Mass) 141 F2d 288, cert den 323 US 753, 89 L Ed 603, 65 S Ct 81; Schwartz v Myrden (1947, CA1 Mass) 160 F2d 678.

Defense of assumption of risk has long been eliminated from maritime injury law by 45 USCS § 54. Rivera v Farrell Lines, Inc. (1973, CA2 NY) 474 F2d 255, 17 FR Serv 2d 394, cert den 414 US 822, 38 L Ed 2d 55, 94 S Ct 122; Wurz v Santa Fe International Corp. (1976, DC Del) 423 F Supp 91, 22 FR Serv 2d 1103.

Despite glaring negligence of seamen that may have contributed to his injury, seaman cannot be said to have assumed risk, where risk could be reasonably controlled by shipowner. Reyes v Vantage S.S. Co. (1977, CA5 Tex) 558 F2d 238, on reh (CA5 Tex) 609 F2d 140, later app (CA5 Tex) 672 F2d 556, later proceeding (SD Tex) 575 F Supp 926, withdrawn.

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

359. Relation to contributory negligence

In action under 46 USCS Appx § 688, assumption of risk must be applied in conjunction with established admiralty doctrine of comparative negligence, and under that doctrine comparative negligence however gross is not bar to recovery but only mitigates damages. Socony-Vacuum Oil Co. v Smith (1939) 305 US 424, 83 L Ed 265, 59 S Ct 262.

Under 46 USCS Appx § 688, assumption of risk on part of seaman is considered as comparative negligence. Imperial Oil, Ltd. v Drlik (1956, CA6 Ohio) 234 F2d 4, cert den 352 US 941, 1 L Ed 2d 236, 77 S Ct 261; Stahlin v Lehigh V. R. Co. (1940) 125 NJL 211, 15 A2d 344.

Relevant factors in determining assumption of risk are important only insofar as they tend to establish contributory negligence on part of plaintiff. Fonsell v New Yrok Dock Railway (1961, ED NY) 198 F Supp 332.

Defense of assumption of risk is not available as bar to recovery but may be considered in determining damages. Rouchleau v Silva (1950) 35 Cal 2d 355, 217 P2d 929; Fegan v Lykes Bros. S.S. Co. (1940, La App) 195 So 392, remanded on other grounds 196 La 541, 199 So 635, conformed to (La App) 199 So 680, mod on other grounds 198 La 312, 3 So 2d 632; Stahlin v Lehigh V. R. Co. (1940) 125 NJL 211, 15 A2d 344; Proctor v Sword Line, Inc. (1948, City Ct) 83 NYS2d 288.

360. Applicability to longshoremen and other shore personnel

Voluntary assumption of known risk, is still defense available under 46 USCS Appx § 688 as respects actions by longshoremen and other workers who serve on craft merely during day and live ashore. Olszewski v United Fruit Co. (1940, DC Pa) 34 F Supp 113.

Assumption of risk is no defense in personal injury action by longshoreman. Sousa v M/V Caribia (1973, DC Mass) 360 F Supp 971.

361. Ordinary risks of occupation

Seaman accepts obvious and well-known risks of business but does not run risks of negligence of others, and he has right to assume that he will receive protection to which he is entitled. Roberts v United Fisheries Vessels Co. (1944, CA1 Mass) 141 F2d 288, 1944 AMC 599, cert den 323 US 753, 89 L Ed 603, 65 S Ct 81; Gelb v United States (1948, DC Cal) 75 F Supp 833.

Seaman assumes ordinary risks of his occupation, of which negligence of owner or master is not one; if seaman is injured in one of normal hazards of business, without fault on part of anyone else, ship being seaworthy and equipment perfect, he assumes loss himself, subject to right of maintenance and cure, whether under 46 USCS Appx § 688 or under maritime law. Roberts v United Fisheries Vessels Co. (1944, CA1 Mass) 141 F2d 288, cert den 323 US 753, 89 L Ed 603, 65 S Ct 81.

Although seaman in boarding vessel assumes risk of his calling, assumption of risk as defense in suit under 46 USCS Appx § 688 is different matter; when seaman assumes risk of his calling it means that seaman injured as result of being exposed to risk not avoidable by employer's due care, cannot recover for negligence. Rush v Cargo Ships & Tankers, Inc. (1966, CA2 NY) 360 F2d 766, cert den 385 US 842, 17 L Ed 2d 75, 87 S Ct 96.

Seamen are deemed to realize and accept or assume risk of natural hazards of their occupation. Savard v Marine Contracting, Inc. (1972, CA2 Conn) 471 F2d 536, cert den 412 US 943, 37 L Ed 2d 404, 93 S Ct 2778.

Relief is not warranted pursuant to 46 USCS Appx § 688 where plaintiff simply hurt his back carrying scrap metal to deck of ship, which was duty that plaintiff readily concedes to be no more than normal hazard of his work. Chisholm v Sabine Towing & Transp. Co. (1982, CA5 Tex) 679 F2d 60.

Evidence supported jury's finding that vessel was not unsafe in placement of pump hose over which plaintiff fell where defendant produced photographs showing similar placement of hose on other vessels; further, slime on fishing vessel did not render it unseaworthy since decks of fishing vessels are slippery by nature. Morning v Zapata Protein (USA) (1997, CA4 Va) 128 F3d 213.

Despite 46 USCS Appx § 688, seaman assumes ordinary risks of his employment, and those which are obvious or fully appreciated. Peterson v P. Sandford Ross, Inc. (1928, DC NY) 28 F2d 283; Lloyd v T. Hogan & Sons, Inc. (1927) 128 Misc 665, 219 NYS 750.

Where defendant is not negligent, seaman sustaining heart attack as result of exertion doing ordinary seamen's work has no right of action under 46 USCS Appx § 688. Lamon v Standard Oil Co. (1954, DC La) 117 F Supp 831.

Deckhand's Jones Act (46 USCS Appx § 688) claim is denied summarily, where he injured back while handing down very heavy bow hemp loop, even though he argues that lighter "Kevlar" line or assistance of another deckhand would have avoided his injury, because it was not negligent simply to ask seaman to move or lift heavy object. Rutherford v Lake Mich. Contrs., Inc. (2000, WD Mich) 132 F Supp 2d 592, 2000 AMC 2314.

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

Determination of whether decedent was ordered into place of danger by captain on vessel or whether he assumed risk normally incident to his calling as seaman was question for jury. Kuljis v Xitco (1941) 8 Wash 2d 606, 113 P2d 26.

362. Unsafe appliances or working conditions

Assumption of risk is no defense to suit brought by seaman under 46 USCS Appx § 688 to recover for injuries sustained by reason of vessel's unseaworthiness or defective appliance which was part of equipment of vessel on which he was employed. The Arizona v Anelich (1936) 298 US 110, 80 L Ed 1075, 56 S Ct 707, reh den 298 US 692, 80 L Ed 1409, 56 S Ct 945.

Assumption of risk is no defense to suit brought by seaman under 46 USCS Appx § 688 for negligent failure of master to provide safe appliances or safe place in which to work; seaman not under articles and working while vessel was in port did not assume risk of unsafe place to work. Beadle v Spencer (1936) 298 US 124, 80 L Ed 1082, 56 S Ct 712, 1936 AMC 635.

Seaman, in performance of his duties, is not deemed to assume risk of unseaworthy appliances. Mahnich v Southern S.S. Co. (1944) 321 US 96, 88 L Ed 561, 64 S Ct 455, 1944 AMC 1.

Seaman does not assume risk of improper appliances by accepting employment upon ship that is not properly equipped. Cricket S. S. Co. v Parry (1920, CA2 NY) 263 F 523, cert den 252 US 580, 64 L Ed 726, 40 S Ct 345; Coast S.S. Co. v Brady (1925, CA5 Ala) 8 F2d 16, cert den 269 US 578, 70 L Ed 421, 46 S Ct 103.

When injury is caused by failure of master to provide safe place to work or safe appliances, defense of assumption of risk cannot be made. Grant v United States Shipping Board Emergency Fleet Corp. (1927, CA2 NY) 22 F2d 488; Wychgel v States S.S. Co. (1931) 135 Or 475, 296 P 863, cert den 284 US 625, 76 L Ed 533, 52 S Ct 11 and (ovrld on other grounds Hust v Moore-McCormack Lines, Inc. 180 Or 409, 177 P2d 429).

While seaman assumes ordinary risks of his employment, he does not assume risk of injury from failure of employer to supply and keep in order proper appliances of ship, though risk of injury is obvious. Pittsburgh S.S. Co. v Palo (1933, CA6 Ohio) 64 F2d 198.

Seaman does not assume risk of injury even from obvious dangers if proximate cause thereof is failure of shipowner or master to supply and keep in order proper appliances appurtenant to ship or failure to provide safe place in which to work. Cleveland-Cliffs Iron Co. v Martini (1938, CA6 Ohio) 96 F2d 632, 1938 AMC 985, cert den 305 US 605, 83 L Ed 384, 59 S Ct 65; The Seeandbee (1939, CA6 Ohio) 102 F2d 577, 14 Ohio Ops 171, 1939 AMC 711.

Seamen and others who work on vessel must accept, without critical examination and without protest, working conditions and appliances as commanded by their superior officers; therefore, they do not assume risk of working under such conditions. Marchese v Moore-McCormack Lines, Inc. (1975, CA2 NY) 525 F2d 831.

Seaman does not assume risk of injury resulting from unseaworthiness of vessel, defective appliances, or place to work not made reasonably safe, even though he had knowledge of danger and continued in employment since seaman cannot quit employment at will. Grimberg v Admiral Oriental S.S. Line (1924, DC Wash) 300 F 619.

Seaman does not assume risk of injury even from obvious dangers if proximate cause of injury is failure of shipowner or master to supply and keep in order proper appliances or to provide safe place in which to work. Proctor v Sword Line, Inc. (1948, City Ct) 83 NYS2d 288.

363. --Seaman's choice between safe and unsafe appliances or methods

Seaman may recover, under 46 USCS Appx § 688, for injuries received in his work as oiler where he had choice between dangerous and less dangerous method of performing certain act, and he carelessly chose more dangerous way. Smith v Socony Vacuum Oil Co. (1938, CA2 NY) 96 F2d 98, 1938 AMC 589, affd 305 US 424, 83 L Ed 265, 59 S Ct 262, 1939 AMC 1.

Assumption of risk is not available as affirmative defense to action under 46 USCS Appx § 688; this is so notwithstanding that complaining seaman's injuries are result of his use of known unsafe appliance or method although he had free choice to avoid such use. Armit v Loveland (1940, CA3 Pa) 115 F2d 308.

Choice of defective appliance when more appropriate one is available does not render assumption of risk defense under 46 USCS Appx § 688 when employee was on duty, even though such defense is applicable when employee was not on duty. Wong Bar v Suburban Petroleum Transport, Inc. (1941, CA2 NY) 119 F2d 745, 1941 AMC 844.

Assumption of risk is not defense to action brought by seaman under 46 USCS Appx § 688 even when seaman knowingly uses defective appliance instead of performing his duty in way he knows to be safe. Movible Offshore Co. v Ousley (1965, CA5 La) 346 F2d 870 (disapproved on other grounds Rodrigue v Aetna Casualty & Surety Co., 395 US 352, 23 L Ed 2d 360, 89 S Ct 1835 (superseded by statute on other grounds as stated in Herb's Welding v Gray (CA5) 703 F2d 176, reh den (CA5) 711 F2d 666, revd 470 US 414, 84 L Ed 2d 406, 105 S Ct 1421, on remand (CA5) 766 F2d 898 and cert gr 465 US 1098, 80 L Ed 2d 122, 104 S Ct 1589, motion gr 467 US 1258, 82 L Ed 2d 854, 104 S Ct 3551)) as stated in Laredo Offshore Constructors, Inc. v Hunt Oil Co. (CA5 Tex) 754 F2d 1223.

Seaman injured as result of taking dangerous route when two safe routes were available could not recover damages for accident during storm at sea. Bohannon v United States (1950, DC NY) 92 F Supp 700, 1950 AMC 1009, affd (CA2 NY) 185 F2d 678, 1951 AMC 319.

Seaman's claim that choice of site for and supervision of crew's liberty at remote anchorage was negligent and created liability for injuries he suffered on liberty under 46 USCS § 688 is dismissed, where captain permitted off-duty crewmen to investigate shipwreck in groups and seaman lowering himself from shipwreck by use of rope he found on 20-year-old shipwreck fell 30-40 feet, fracturing 2 vertebrae and left heel, because ship's captain and supervisory personnel breached no duties in providing crew with interesting liberty opportunity and minimally overseeing leisure activities, but rather seaman breached duty to use good sense by relying on old, untested rope when descending from dangerous height. Howard v M/V Bristol Monarch (1987, WD Wash) 652 F Supp 677.

Instructions by trial court, that defendant could be found liable if jury found there was "safer method" to do work and if use of "safer method" would have avoided injury, was not reversible error where trial judge expressly stated throughout charge that test was one of "reasonableness," and that when determination of whether or not "reasonable" method was made proper element of consideration was whether safer alternative method was known and available to defendant; "safer method" charge had basis in evidence, where conditions indicated that plaintiff was ordered to perform his assignments under unreasonably dangerous conditions, jury charge that any one cause of plaintiff's injury could be attributed to defendant's negligence, was not reversible error particularly in view of fact that jury had been told numerous times that to find liability, they must find that defendant's negligence did cause, at least in part, plaintiff's injuries. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.

364. Obeying orders

Seaman does not assume risk inherent in carrying out orders of superior since he has obligation to obey such orders. The Arizona v Anelich (1936) 298 US 110, 80 L Ed 1075, 56 S Ct 707, reh den 298 US 692, 80 L Ed 1409, 56 S Ct 945.

Fact that seaman, injured through negligent failure to provide him with safe place in which to work, was employed on coastwise vessel which was in port at time of accident, so that he was free to avoid risk by leaving vessel without liability for punishment for desertion, does not make assumption of risk available as defense to action brought by him under 46 USCS Appx § 688. Beadle v Spencer (1936) 298 US 124, 80 L Ed 1082, 56 S Ct 712.

There is no assumption of risk when seaman obeys orders of superior in exposing himself to danger, although danger may have been obvious to him. United States v Boykin (1931, CA5 Fla) 49 F2d 762; Salem v United States Lines Co. (1961, CA2 NY) 293 F2d 121, 1962 AMC 1464, affd in part and revd in part on other grounds 370 US 31, 8 L Ed 2d 313, 82 S Ct 1119, 1962 AMC 1456, reh den 370 US 965, 8 L Ed 2d 834, 82 S Ct 1578 and on remand (CA2) 304 F2d 672.

Seaman does not assume any risks involved in obeying orders. Hanson v Luckenbach S. S. Co. (1933, CA2 NY) 65 F2d 457, 1933 AMC 764; Proctor v Sword Line, Inc. (1948, City Ct) 83 NYS2d 288.

Appropriateness of orders of vessel master must be considered in determining applicability of assumption of risk. Roberts v United Fisheries Vessels Co. (1944, CA1 Mass) 141 F2d 288, cert den 323 US 753, 89 L Ed 603, 65 S Ct 81.

Assumption of risk does not mean that mere giving of orders by ship's officers releases seamen of all responsibility. Darlington v National Bulk Carriers, Inc. (1946, CA2 NY) 157 F2d 817.

Because of unique status of seaman (in that he is obliged to obey whatever order he is given, under pain of severe penalty), necessitated by rigors of sea, burden of risks incident to their calling should be borne by shipowners. Hudson Waterways Corp. v Schneider (1966, CA9 Cal) 365 F2d 1012.

Stevedores undertaking work at direction of superior did not assume risk. The Richelieu (1928, DC Md) 27 F2d 960, 1928 AMC 1143, mod (CA4 Md) 48 F2d 497, 1931 AMC 721, cert den 284 US 621, 76 L Ed 530, 52 S Ct 9.

Second assistant engineer did not assume risk in obeying lawful orders of his chief. Joseph P. Duffy v United States (1934, DC NY) 1934 AMC 1268.

Seaman does not assume risk arising from work he is ordered to do with insufficient assistance. The Harrisburg (1936, DC Tex) 1936 AMC 311.

Sailor at sea does not assume risk of obvious dangers when carrying out orders of one in authority not necessary for preservation of ship or cargo, for reason that he is obliged to obey orders and has not freedom of action, choice to obey or quit, as have workmen on land. South Atlantic S.S. Co. v Munkacsy (1936, Sup) 37 Del 580, 187 A 600, cert den 299 US 607, 81 L Ed 448, 57 S Ct 233.

365. Disobeying orders

Seaman's disobedience of order as to mode of protecting himself caused his own death and employer is not liable. Grunert v Bush Terminal Co. (1931, CA2 NY) 47 F2d 565, 1931 AMC 428.

Seaman's failure to heed multiple admonitions to move away from dangerous position near tow bit was contributory negligence. Ceja v Mike Hooks, Inc. (1982, CA5 La) 690 F2d 1191.

Seventeen-year-old seaman was not entitled to recover for injury incurred as result of explosion of German flare he had brought on board in direct violation of orders as result of unauthorized trip to beachhead. Chandler v United States (1949, DC NY) 94 F Supp 581, 1949 AMC 1167, affd (CA2) 185 F2d 1019.

3. Contributory Negligence and Assumption of Risk Under Particular Circumstances

366. Assaults

Seaman injured while attempting to take knife from drunken sailor to protect another sailor was not guilty of contributory negligence. Jensen v United States War Shipping Administration (1949, DC Pa) 88 F Supp 542, 1949 AMC 1928, affd (CA3 Pa) 184 F2d 72, 1950 AMC 1797.

367. Doors

Seaman did not assume risk of injury to his fingers from closing of door lacking proper doorstop, since assumption of risk does not apply where improper appliance is furnished to seaman during voyage. Howarth v United States Shipping Board Emergency Fleet Corp. (1928, CA2 NY) 24 F2d 374.

Libellant, chief steward in charge of gang of four subordinates shifting ship's stores from one storeroom to another on lower deck, could not recover damages for injuries sustained when iron door of storeroom swayed and hit his left hip where his negligence is not securing door was sole cause of accident. Witt v United States (1949, DC NY) 82 F Supp 696.

368. Emergencies

Deck hand was not guilty of such negligence as barred recovery by taking reasonable risk in act of saving his master's property. Re Lee Transit Corp. (1930, CA2 NY) 37 F2d 67, 1930 AMC 297.

That seaman acted in emergency situation not caused by his own antecedent negligence is factor to be considered in determining whether his conduct is free from contributory negligence. Asaro v Parisi (1962, CA1 Mass) 297 F2d 859, cert den 370 US 904, 8 L Ed 2d 400, 82 S Ct 1250.

Mere possibility that plaintiff was contributorily negligent would not bar his recovery under 46 USCS Appx § 688 where plaintiff's efforts to free certain cable was normal response to stimulus of dangerous situation created by defendant. Sanford Bros. Boats, Inc. v Vidrine (1969, CA5 La) 412 F2d 958.

In rescue situations correct standard in determining contributory negligence of rescuer is wanton and reckless both in perceiving need for rescue and in undertaking it. Furka v Great Lakes Dredge & Dock Co. (1987, CA4 Md) 824 F2d 330.

Method adopted by engineer on watch in holding down throttle by hand did not defeat recovery for injury to his face by flying up of throttle handle where engineer was acting in emergency situation. Adders v United States (1933, DC NY) 5 F Supp 457, affd (CA2 NY) 70 F2d 371, 1934 AMC 511.

369. Engines and machinery

Seaman could not recover damages for loss of thumb caught between line and spool where he negligently stood too close to operating machinery and negligently placed his hand in dangerous position. Heder v United States (1948, CA9 Cal) 167 F2d 899.

In action by seaman claiming he was injured when "cleanout" pipe rolled, crushing tip of his left toe, while he and other crew members were changing flange in main pump of dredge, trial court erred in instructing jury, over proper objection, that seaman was required to use ordinary care under circumstances for his own safety at time of accident, rather than instructing on proper standard, which is slight care. Brooks v Great Lakes Dredge-Dock Co. (1984, CA5 La) 754 F2d 536, on reh, mod (CA5 La) 754 F2d 539.

Effort of seaman to dodge between grab bucket being hoisted from deck and boom constituted contributory negligence reducing damages. Olsen v Maine Coal & Dock Co. (1930, DC Me) 43 F2d 220, 1930 AMC 1144.

Member of crew of fishing boat who insisted on boat leaving for fishing trip before winch gears were covered did not assume risk of injury occurring after trip was completed. The Lorenzo Scola (1931, DC Mass) 1931 AMC 1607.

Seaman was guilty of negligence contributing to his injury in leaving cab of caterpillar lift with its engines in full operation while lift and shovel were descending to deck. Barge v United States (1947, DC Cal) 72 F Supp 328.

Accident and injuries sustained by plaintiff as result of hand becoming entangled in generator belt of unguarded generator resulted from combined and concurring negligence of plaintiff's employer and that of plaintiff himself, and plaintiff's contributory negligence in not using ordinary care or keeping proper lookout for his own safety when entering engine room contributed to his accident and injuries. Theall v Sam Carline, Inc. (1963, WD La) 241 F Supp 748.

Chief engineer assumed risk of injury from relief valve on cylinder in boiler room where danger was obvious. Patterson v Cleveland Cliffs Iron Co. (1930, Cuyahoga Co) 37 Ohio App 316, 9 Ohio L Abs 207, 174 NE 592.

370. Explosions

Illiterate longshoreman does not assume risk of injury by dust explosion in hold of ship loading pitch caused by either sparks from electric trimmer or flames from open torches, both furnished by stevedoring company. Cornec v Baltimore & O. R. Co. (1931, CA4 Md) 48 F2d 497, 1931 AMC 721, cert den 284 US 621, 76 L Ed 530, 52 S Ct 9.

Plaintiff injured by turbine explosion caused solely by plaintiff's negligent actions could not recover. Sotell v Maritime Overseas, Inc. (1973, CA2 NY) 474 F2d 794.

Seaman killed by explosion of gun powder was not contributorily negligent where there was no evidence to show that he had knowledge or opportunity to observe that powder had leaked from case onto deck. Petition of Clyde S. S. Co. (1926, DC NY) 16 F2d 930, 1926 AMC 1577, affd (CA2 NY) 18 F2d 1015, cert den 275 US 529, 72 L Ed 409, 48 S Ct 21.

Seventeen-year-old seaman was not entitled to recover for injury incurred as result of explosion of German flare he had brought on board in direct violation of orders as result of unauthorized trip to beachhead. Chandler v United States (1949, DC NY) 94 F Supp 581, 1949 AMC 1167, affd (CA2) 185 F2d 1019.

Plaintiff seaman who had no education, was of low intelligence and had never been instructed that starting bilge pumps belows decks was unsafe, was not at fault for explosion and fire arising from pumps' operation. Sylve v E. W. Gravolet Canning Co. (1967, ED La) 278 F Supp 669.

In action for death of seaman caused by explosion of air tank, question of assumption of risk was for jury. Meagher v Wagner Tug Boat Co. (1932) 168 Wash 253, 11 P2d 245, cert den 287 US 657, 77 L Ed 567, 53 S Ct 120.

371. Fellow servant's negligence

Employee does not assume risk of injury from negligence of fellow employee in lowering heavy objects into hold of vessel. Anderson v Matson Navigation Co. (1932) 125 Cal App 447, 13 P2d 1041.

Stevedore did not assume risk of injury from negligence of fellow servant, which negligence was not open and apparent to servant injured. Ranstrom v International Stevedoring Co. (1929) 152 Wash 332, 277 P 992.

372. Gangways

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.

Second engineer assumed risk of injury from slipping on gangway. Fleischman v United States (1934, DC NY) 1934 AMC 641.

Crew member on shore leave fell into water between his vessel and wharf where vessel was docked, and there was no evidence that vessel was originally tied to wharf too loosely or in any but entirely proper manner, or that extension part of gangway was unprovided with railing or hand line; therefore, he was not entitled to recover damages for personal injuries: if respondent was negligent, seaman assumed risk of danger, since he was under no compulsion to come aboard. Paul v United States (1943, DC La) 54 F Supp 60.

373. Hatches

Injury to longshoreman was due to his own inattention in stepping into hatchway while engaged in removing covering from hatch. Seas Shipping Co. v Ward (1927, CA9 Or) 22 F2d 251, 1928 AMC 141.

Experienced seaman is charged with knowledge that it is dangerous to walk upon hatch covers, unless all boards are in place and securely fastened. Carlson v United States (1934, CA5 La) 71 F2d 116, 1934 AMC 841.

In action for death of stevedore who fell through hatch on defendant's vessel, alleged contributory negligence on part of deceased as well as question as to whether defendant had seen that hatch covers which would not get out of position when stepped on were placed on hatch, and whether there had been proper inspection to discover defect, during two days which intervened between completion of repairs by another company and occurrence, were matters for jury. Greco v Lorentzen (1943, CA2 NY) 139 F2d 113, 1944 AMC 65.

Fireman injured by fall through floor of engine room due to steel plate slipping out of position did not assume risk of such injury as incidental to his employment. The Gaston (1932, DC Tex) 1932 AMC 717.

Young seaman in obeying orders of officers in charge, did not assume risk in falling into hatchway on account of slippery deck. 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.

Employee did not assume risk of injury from absence of guard along hatchway coaming, though employee might have walked on lumber negligently piled close to coaming. Engfors v Nelson S.S. Co. (1929) 131 Or 108, 280 P 337.

Experienced longshoreman assumed risk of injury in working on hatch where danger was open, plain and necessarily incident to work. Hartford v Northwestern Stevedoring Co. (1928) 148 Wash 501, 269 P 831.

374. Intoxication

In case in which fireman sued for damages under 46 USCS Appx § 688 and plaintiff introduced evidence that he was injured while coming on board at request of superior, and evidence by defendant was that plaintiff was injured as result of intoxicated condition, court properly denied motion by defendant for directed verdict. Casey v Seas Shipping Co. (1949, CA2 NY) 178 F2d 360, 1950 AMC 248.

In action under 46 USCS Appx § 688 to recover for injuries, intoxication, where it contributes to seaman's injury, constitutes contributory negligence on his part and operates only to mitigate damages. Bentley v Albatross S.S. Co. (1953, CA3 Pa) 203 F2d 270.

Intoxication of seaman does not work forfeiture of claim under 46 USCS Appx § 688, but rather lessens recoverable damages, unless seaman's negligent intoxication is sole cause of injuries. 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.

Owner was exonerated from all liability where drownings of seamen were caused solely by their helpless state due to intoxication. Petition of Atlass (1965, CA7 Ill) 350 F2d 592, cert den 382 US 988, 15 L Ed 2d 476, 86 S Ct 551, reh den 383 US 923, 15 L Ed 2d 679, 86 S Ct 884 and reh den 384 US 914, 16 L Ed 2d 368, 86 S Ct 1336 and cert den 382 US 988, 15 L Ed 2d 476, 86 S Ct 556, reh den 383 US 923, 15 L Ed 2d 679, 86 S Ct 884 and reh den 384 US 914, 16 L Ed 2d 368, 86 S Ct 1336.

That decedent seaman was drunk at time of his death should be considered in light of fact that he, as well as other crew members, had been supplied with intoxicants by master of ship who failed to exercise any supervisory control over its use; for this, vessel must bear at least part of fault. Reyes v Vantage S.S. Co. (1977, CA5 Tex) 558 F2d 238, on reh (CA5 Tex) 609 F2d 140, later app (CA5 Tex) 672 F2d 556, later proceeding (SD Tex) 575 F Supp 926, withdrawn.

In action by seaman against operators of vessel to recover for personal injuries sustained by him while on shore leave in fist fight with chief engineer in barroom, whether words by seaman in addressing chief engineer of vessel constituted provocation for physical assault was question for jury as was question of his sustaining injuries complained of by reason of his own willful intoxication. Nowery v Smith (1946, DC Pa) 69 F Supp 755, 1946 AMC 1702, affd (CA3 Pa) 161 F2d 732, 1947 AMC 756.

In action under 46 USCS Appx § 688, to recover for injuries to wrist sustained following manacling as attempt to restrain seaman in state of intoxication, drunken state did not bar damages; if intoxication had been contributing cause of injuries sustained, then recovery would be reduced. Cruz v American Export Isbrandtsen Lines, Inc. (1970, SD NY) 310 F Supp 1364.

Mere showing that plaintiff had imbibed alcoholic beverages while on shore shortly before accident for which he sued, does not establish intoxication of plaintiff so as to bar his right to recover. Vandinter v American S.S. Co. (1975, WD NY) 387 F Supp 989.

In action by seaman employed to work on fishing boat for injuries sustained when he fell off dock ladder while boarding boat, against shipowner for injuries resulting from unseaworthiness of vessel and from negligence of shipowner under Jones Act, there was sufficient evidence to support jury's finding that seaman's intoxication was sole cause of his injury where seaman testified he had at least three beers that evening, where he testified that he was not actually on ladder when he fell, but his feet were still on dock, and that as he grabbed top rung of ladder, while standing on dock, he fell, and where jurors had opportunity to examine dock ladder for themselves. Loof v Sanders (1984, Alaska) 686 P2d 1205.

In action to recover damages under 46 USCS Appx § 688, intoxication of seaman at time of injuries which resulted in his death would not be bar to recovery, but is contributory negligence which would serve only to reduce quantum of damages. 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.

375. Ladders

Use of ladder by engineer with knowledge of defects would not permit recovery. O'Bryant v States S.S. Co. (1929, CA9 Cal) 36 F2d 305, 1930 AMC 50.

Sailor assumes risks incident to heavy wave passing over vessel and washing him from ladder which he ascended for safety. The Cricket (1934, CA9 Cal) 71 F2d 61, 1934 AMC 1035.

In suit to recover for injury received due to fall from ladder while working as able-bodied seaman, plaintiff can recover no damages where he was wholly at fault when he received his injury. Field v Waterman S.S. Corp. (1939, CA5 Ala) 104 F2d 849, 1939 AMC 1555.

Apportionment of fault and proportionate allowance of damages under comparative negligence rule was proper where injury sustained by libellant was due both to negligent failure of government to maintain safety rope along bulkhead and to negligence of libellant in stepping off ladder on wrong side. 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.

Seaman did not assume risk inherent in carrying out order of mate directing him to take two shovels up ladder at same time. Reskin v Minnesota-Atlantic Transit Co. (1939, CA2 NY) 107 F2d 743, 1940 AMC 111.

Short ladder held by deckhand to assist cook in leaving tug on which they were employed was as appropriate means of effecting his purpose as longer ladder would have been, and cook cannot be deemed to have chosen unsafe appliance in preference to safe one so as to justify conclusion that he assumed risk. Wong Bar v Suburban Petroleum Transport, Inc. (1941, CA2 NY) 119 F2d 745, 1941 AMC 844.

Master mariner, falling from ladder safety of which he could have determined for himself, assumed risk and was guilty of contributory negligence. McCarthy v United States (1934, DC NY) 1934 AMC 939.

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.

376. Lighting

Seaman, who fell overboard at night assumed risk involved in moving about without searchlight. Martin v Lower Coast Const. Co. (1927, CA5 La) 16 F2d 835.

In action by master of fishing boat for injuries sustained in fall on slippery deck at night after deck lights had failed due to loss of electric power, his failure, in due performance of his supervisory responsibilities as master to see that engineer got electric power restored would be but species of contributory fault which would go only in diminution of damages instead of being complete bar to action. Boat Dagny, Inc. v Todd (1955, CA1 Mass) 224 F2d 208.

Stand-by seaman who fell through trap door while approaching mate in master's saloon to obtain pass to go ashore, was allowed to recover but half damages, since inadequate lighting put him under duty to proceed carefully in unfamiliar quarters. Dervishoglu v Boyazides (1942, DC NY) 44 F Supp 385, 1942 AMC 556.

377. Lines and rigging

Seaman using rope under orders did not assume risk of injury. Masjulis v United States Shipping Board Emergency Fleet Corp. (1929, CA2 NY) 31 F2d 284, 1929 AMC 740.

Employee giving signals to winchman was not negligent in standing within reach of swing of draft. W. J. McCahan Sugar Refining & Molasses Co. v Stoffel (1930, CA3 Pa) 41 F2d 651, 1930 AMC 1482.

Chambermaid, who insisted on running on single gunwale of barge instead of on double gunwale, though warned not to do so, was not entitled to recover damages for negligence, when injured by line, since only negligence was that of chambermaid. Reabe v United States Steel Co. (1952, CA3 Pa) 194 F2d 398.

Mere possibility that plaintiff was contributorily negligent would not bar his recovery under 46 USCS Appx § 688 where plaintiff's efforts to free certain cable was normal response to stimulus of dangerous situation created by defendant. Sanford Bros. Boats, Inc. v Vidrine (1969, CA5 La) 412 F2d 958, 13 FR Serv 2d 1116.

In action by master to recover for injuries, under 46 USCS Appx § 688, master was not contributorily negligent in using hands to untangle line after giving order to crew member to start winch, since use of hands to untangle line was not negligence. Williams v Brasea, Inc. (1974, CA5 Tex) 497 F2d 67, mod on other grounds and reh den (CA5 Tex) 513 F2d 301, cert den 423 US 906, 46 L Ed 2d 136, 96 S Ct 207 and later app (CA5 Tex) 549 F2d 977.

Seaman's failure to seek or obtain towline of adequate length did not constitute contributory negligence in absence of showing there existed safe alternative available to him of which he was aware or should have been aware. Ceja v Mike Hooks, Inc. (1982, CA5 La) 690 F2d 1191.

Seaman assumed risk of injury to ankle while passing over rope coiled on afterdeck. The Nantucket (1933, DC Mass) 1933 AMC 473.

Negligent owner of river tugboat is 80 percent liable under Jones Act and contributorily negligent seaman whose back was injured carrying cable on tugboat is 20 percent responsible where devices left attached to cable by owner snagged and prevented cable from rolling off of stack, seaman freed snag by lifting cable straight up, both owner and seaman had several days to inspect cables and evaluate best way to move them, and seaman was experienced, did not ask for assistance in moving cables, was familiar with alternative method of lifting cable with his shoulder, and, due to prior back injury, was in best position to assess his lifting ability. Burden v Evansville Materials, Inc. (1986, WD Ky) 636 F Supp 1022.

Seaman injured when, without order, he speeded up lift being used in heaving on board one of ship's mooring lines, did not assume risk of action where proximate cause of injury was improper securing of line to winch by defendant's employees, inasmuch as he was endeavoring to carry out order and had right to assume line was properly placed. Paulsen v McDuffie (1935) 4 Cal 2d 111, 47 P2d 709.

Seaman could not assume risk of working with frayed cable on steam winch even though he knew it was frayed. Paulsen v McDuffie (1935) 4 Cal 2d 111, 47 P2d 709.

Decedent who moved from place of safety to place of danger, in stepping from landing to ladder while jet line was operating where danger was obvious assumed risk. McClain v Kansas City Bridge Co. (1938) 232 Mo App 1189, 116 SW2d 253.

Longshoreman working under ship's tackles did not assume risk of patent defect in cargo ring. The Georgine (1929, Wash) 1929 AMC 488.

378. Loading and unloading operations

Extraordinary risk created by lifting draft suddenly without signal was not assumed by longshoreman engaged in unloading cargo. W. J. McCahan Sugar Refining & Molasses Co. v Stoffel (1930, CA3 Pa) 41 F2d 651, 1930 AMC 1482.

Seaman did not assume risk of injury from dropping of wheel of jitney truck loaded with sacks of peas into hole in hold deck where danger was unknown to him. W. R. Chamberlin & Co. v Rylander (1934, CA9 Cal) 68 F2d 362, 1934 AMC 192.

Seaman, injured when draft of cargo, which had been swung over square of main deck hatch, carried away and crashed through hatchway covering on 'tween deck, did not assume risk and was entitled to recover. Re Luckenbach S.S. Co. (1925, DC NY) 16 F2d 168, affd (CA2 NY) 16 F2d 171.

Seamen did not assume risk of injury from negligent manner of loading logs into vessel. The Panzsay (1933, DC NY) 1933 AMC 472.

Foreman loading ship did not assume risk of negligence of hatch tender in sending down load with loose plank without giving special warning. Rasmussen v Twin Harbor Stevedoring & Tug Co. (1928) 147 Wash 260, 265 P 1085.

379. Pre-existing disability of seaman

Person who is "seaman" and suffers injury in course of his "employment" as seaman, within ordinary meaning of those words, is not barred from suit under 46 USCS Appx § 688 because he concealed fact that he had filed prior claims for injuries and illnesses against previous employers, in applying for employment. Gypsum Carrier, Inc. v Handelsman (1962, CA9 Cal) 307 F2d 525, 4 ALR3d 517, 1963 AMC 175.

If seaman knowingly exposes himself to conditions of employment while aware of illness or disability which makes those conditions unsafe to him, or where seaman has possibility of securing relief from unsafe conditions by informing his superiors of them, but continues to work without doing so, he may be found to be contributorily negligent. Savoie v Otto Candies, Inc. (1982, CA5 La) 692 F2d 363, 12 Fed Rules Evid Serve 269.

In action to recover damages for personal injuries under 46 USCS Appx § 688 and for unseaworthiness defendant could not set up as defense that plaintiff had obtained his employment by fraud, in that he knew that he was physically unfit and hence was not bona fide crewman. Spinks v United States Lines Co. (1963, SD NY) 223 F Supp 371, 1963 AMC 2128.

Mere existence and nondisclosure of pre-existing disability does not of itself amount to contributory negligence but rather there must be causal link between such failure and harm eventually incurred; seaman is not expected or required to complain and is not contributorily negligent for failing to report obvious physical disabilities. Curry v United States (1971, ND Cal) 327 F Supp 155, supp op (ND Cal) 338 F Supp 1219.

Seaman in order to recover for aggravation of condition under 46 USCS Appx § 688 need not reveal every possible physical infirmity, no matter how minor or how dormant; rather, test is whether seaman, in good faith, believed himself fit for duty when he signed aboard for duty. Curry v United States (1971, ND Cal) 327 F Supp 155, supp op (ND Cal) 338 F Supp 1219.

Contributory negligence is applied to mitigate damages in actions commenced under Jones Act (46 USCS Appx § 688), and is question for jury; failure to disclose illness to employer may have amounted to contributory negligence. Smith v Cameron Crews, Inc. (1977, La App 3d Cir) 348 So 2d 179, cert den (La) 351 So 2d 169.

380. --Particular illnesses

Average layman would not attach disabling significance to prostate enlargement; hence, failure of sailor to disclose such condition to his prospective captain did not bar his recovery for ensuing disability. Lindquist v Dilkes (1942, CA3 Pa) 127 F2d 21 (ovrld on other grounds Jordine v Walling (CA3 Pa) 185 F2d 662).

In suit by seaman based on alleged negligence and unseaworthiness, seaman did not have duty to disclose to employer prior operation for removal of adhesions, since this duty applies only to maintenance and cure and does not affect issue of negligence or unseaworthiness. Lipscomb v Groves (1951, CA3 Pa) 187 F2d 40, 1957 AMC 452.

Employee's negligence in riding motorcycle after suffering recurrent blackouts was not intervening efficient cause breaking chain of proximate causation in case in which jury found that employee had been injured, in falling from platform while working on ship, due to negligence of defendant, which injury left him subject to recurrent blackouts. Ammar v American Export Lines, Inc. (1964, CA2 NY) 326 F2d 955, cert den 379 US 824, 13 L Ed 2d 34, 85 S Ct 48, reh den 379 US 985, 13 L Ed 2d 579, 85 S Ct 640.

Trial court did not err in submitting to jury issue of contributory negligence with respect to plaintiff's claim that her pulmonary emphysema was aggravated by defendant's failure to furnish her maintenance and cure and instead continued to employ her at work beyond her capacity. Mroz v Dravo Corp. (1970, CA3 Pa) 429 F2d 1156.

Plaintiff under 46 USCS Appx § 688 is not contributorily negligent for failing to self-diagnose his heart attack and failing to have stopped working where ship's doctor did not disclose plaintiff's illness or instruct him not to work. Szumlicz v Norwegian America Line, Inc. (1983, CA11 Fla) 698 F2d 1192.

Seaman was guilty of contributory negligence in action for death under 46 USCS Appx § 688 for injuries sustained onboard vessel in his capacity as steward and cook, given his prior stroke, breathing difficulties, earlier hospitalization and employment with defendant without medical care or service. Potter Title & Trust Co. v Ohio Barge Line, Inc. (1948, DC Pa) 81 F Supp 108, revd on other grounds (CA3 Pa) 184 F2d 432, cert den 340 US 955, 95 L Ed 689, 71 S Ct 567.

381. Protective devices and safety equipment

Marine fire and boiler man could not recover for injuries caused from fall while he was repairing relief valves over boilers of vessel where he chose to work over rail which was installed for entirely different purpose and did not install convenient safety rigging. Vileski v Pacific-Atlantic S.S. Co. (1947, CA9 Cal) 163 F2d 553.

Experienced crewboat skipper who drowned in rough seas was aware or should have been aware that circumstances required use of lifejacket, and failure to wear lifejacket constituted negligence for which plaintiff's award will be reduced. Hebert v Otto Candies, Inc. (1975, ED La) 402 F Supp 503.

382. --Goggles

Employee assumed risk of making repairs without use of goggles furnished. The Sarcoxie (1935, DC NY) 1935 AMC 1011.

Failure of seaman to wear goggles while chipping rust would only affect amount of recovery and would not bar recovery. Haddock v North Atlantic & Gulf S.S. Co. (1948, DC Md) 81 F Supp 421.

Seaman engaged in removing alemite fittings, who failed to make effort to locate goggles and proper tools which were available, was negligent, and such negligence would permit reduction of damages. Pearson v Tide Water Associated Oil Co. (1950, Cal App) 223 P2d 669, hear gr by sup ct, app dismd.

383. Slippery footing

Seaman returning to his room while off duty and not under orders assumed risk of injury by slipping on pool of oil left on deck where he knew danger and could have taken safer route. 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.

Seaman who allegedly slipped, fell, and was injured because of water on floor of his sleeping quarters, negligently caused injury by failing to close porthole. Repsholdt v United States (1953, CA7 Ill) 205 F2d 852, cert den 346 US 901, 98 L Ed 401, 74 S Ct 226, reh den 346 US 928, 98 L Ed 420, 74 S Ct 308.

In case in which plaintiff slipped on diesel fuel which had spilled from drums during loading operation, trial judge did not err in concluding that plaintiff was 30 percent at fault and in reducing his damages by that amount where plaintiff and coworkers previously had spilled diesel fuel on deck. Kelloch v S & H Subwater Salvage, Inc. (1973, CA5 La) 473 F2d 767, on remand (ED La) 397 F Supp 738, later op (ED La) 397 F Supp 742.

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 up since rather than in breach of his duty to maintain safe working conditions he was in process of carrying out that responsibility when accident occurred. Stanworth v American Stern Trawlers, Inc. (1975, CA9 Wash) 523 F2d 46.

Jury's finding that deckhand injured in fall on slippery deck was not contributorily negligent was supported by evidence that deckhand did not have extensive experience, was expected to work regardless of slippery conditions, and did not see grain because he backed up into it. Dempsey v Mac Towing, Inc. (1989, CA11 Ala) 876 F2d 1538, 13 FR Serv 3d 1342.

Fact that plaintiff may have had equal knowledge of or opportunity of knowing with master dangerous condition of deck at time command was complied with would not absolve master from liability for his own negligence, since seaman has obligation to obey orders of his superior so as to deprive him of any freedom of action which forms basis of doctrine of assumption of risk. Sanders v South Atlantic S.S. Co. (1934) 49 Ga App 716, 176 SE 529.

Longshoremen continuing work on greasy floor after calling out to man at gangway that grease spots should be covered, assumed risk, and mere statement by gangwayman that he would notify boss and that sawdust would be supplied was not promise binding on employer. 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.

Seaman did not contribute to his own injury in slipping and falling in oil on deck where he earlier observed such oil as it was not his duty to remove oil, he was not instructed to do so and he had every reason to believe that unsafe condition would be remedied by defendant. Petressen v American President Lines, Ltd. (1944, City Ct) 48 NYS2d 757 (city court of New York).

Young seaman in obeying orders of officers in charge, did not assume risk in falling into hatchway on account of slippery deck. 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.

Absent evidence that it was plaintiff's primary responsibility to fuel vessel and clean up spilled fuel, contributory negligence of plaintiff injured by slipping on vessel resulting from presence of oil on deck of vessel will not be taken into account by jury in arriving at amount of plaintiff's damages. Beauchamp v Sause Bros. Ocean Towing Co. (1973) 267 Or 106, 514 P2d 1346.

384. --Obstructed footing

Since plaintiff's failure to order roof of housing to be cleared of loose boards underfoot was underlying cause of his injuries in falling from roof in attempting to top boom, damages must be apportioned. Lewis v United States Nav. Co. (1944, DC NY) 57 F Supp 652.

Coal passer on car ferry did not assume risk of injury from negligent leaving of jackscrews in passageway when they normally were not kept in passageway when not in use. 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.

Question of whether longshoreman assumed risk of injury from walking over uneven cotton bales was for jury. Buckley v Cunard S.S. Co. (1931) 233 App Div 361, 253 NYS 254.

385. Stairs, catwalks, and walkways

In suit by seaman to recover under 46 USCS Appx § 688 for injuries caused by defective step on which he stood to examine engine bearing, although he knew of defect and had free choice to avoid its use and to examine bearing without standing upon step, his assumption of risk did not bar recovery but might be considered in mitigation of damages. Socony-Vacuum Oil Co. v Smith (1939) 305 US 424, 83 L Ed 265, 59 S Ct 262, 1939 AMC 1.

Able seaman ordered to bring timbers from forehold of vessel in dry dock, who fell from beam to deck of hold, assumed risk in using such beam as short-cut. Hunt v Hobbs, Wall & Co. (1930, CA9 Cal) 42 F2d 437, 1930 AMC 1390.

Negligence and contributory negligence with respect to deck hand using walkway, instead of proceeding by safer course presented jury question. Southern R. Co. v Hermans (1930, CA4 Va) 44 F2d 366, 1931 AMC 175.

That other members of crew walked catwalk without getting hurt did not establish contributory negligence on part of seaman who fell from catwalk. Pollard v Seas Shipping Co. (1945, CA2 NY) 146 F2d 875, 1945 AMC 119.

Seaman was contributorily negligent in sustaining injury when his foot slipped from step as he was descending from crane onto deck of barge while he was looking at and talking to fellow employee as he proceeded to step down onto metal step. Scott v Fluor Ocean Services, Inc. (1974, CA5 La) 501 F2d 983.

That seaman, injured in fall down stairs of ship, knew of defective tread on step, did not prevent recovery, since danger was not so open and obvious as to put one of ordinary prudence upon his guard. The Apurimac (1925, DC Va) 7 F2d 741, 1925 AMC 604, mod (CA4 Va) 12 F2d 500, 1926 AMC 703.

Seaman assumed risk of falling while descending forecastle companionway. Leavy v Baymead (1936, DC Cal) 1936 AMC 312; Carroll v Baymead (1936, DC Cal) 1936 AMC 313.

Fishing vessel owner provided plank as catwalk on vessel, without proper safeguards, and member of crew suffered injury culminating in death therefrom; owner was guilty of failing to furnish safe appliance and decedent assumed no risk. Rouchleau v Silva (1950) 35 Cal 2d 355, 217 P2d 929.

386. Tools and equipment

Where plaintiff used appliance for purpose other than for which it was intended, with acquiescence of master, question of whether he assumed risk of so using it was for jury. Sporgeon v Mahoney (1926, CA9 Cal) 10 F2d 144.

Fireman at sea who tries to turn defective ventilator with pipe-length for leverage does not assume risk of pipe-length slipping off and injuring him. Ives v United States (1932, CA2 NY) 58 F2d 201, 1932 AMC 783.

Where aerial operator, while putting up his aerial on leaving port, as it was his duty to do, fell to his death, his contributory negligence, if any, could be considered only in mitigation of damages. Cleveland-Cliffs Iron Co. v Martini (1938, CA6 Ohio) 96 F2d 632, 1938 AMC 985, cert den 305 US 605, 83 L Ed 384, 59 S Ct 65.

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 of obedience to orders. Darlington v National Bulk Carriers, Inc. (1946, CA2 NY) 157 F2d 817.

Where wiper on ship sued employer to recover for accidental injuries sustained when he struck his head against telephone booth and edge of switch box, employer was not negligent since equipment struck by seaman was normal equipment in normal place. Lake v Standard Fruit & S.S. Co. (1950, CA2 NY) 185 F2d 354.

Exceptionally short man acting as water tender assumed risk of standing on pump in order to open oil fuel valve when valve could have been reached by men of ordinary height present on watch. The Ipswich (1930, DC Md) 46 F2d 136, 1931 AMC 225.

Seamen may not recover for unseaworthiness where although damaged hose caused vessel to be unseaworthy, damaged hose of itself did not cause injury to seaman but rather it was seaman's improper use of seaworthy equipment to repair damaged hose which caused accident. 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 did not assume risk of injury from use of improper tools which he was using in obedience to orders. McGeorge v Charles Nelson Co. (1930) 107 Cal App 148, 290 P 75, 1930 AMC 1783.

Seaman did not assume risk of using makeshift equipment, in view of assurance received from his superior. Ferguson v Chester A. Poling, Inc. (1936) 247 App Div 727, 285 NYS 340.

387. Unsafe work methods

Where maneuver involved obvious danger and risks involved were obvious, deckhand injured in course of operation assumed risk. Southern R. Co. v Hermans (1930, CA4 Va) 44 F2d 366, 1931 AMC 175.

Fault of cook for injury he received while dumping ashes overboard, in lifting drum over top of railing, instead of between rails, where wave crashed into him, will limit his recovery. Lustgarten v United States (1933, DC NY) 5 F Supp 746.

Libellant, injured when batten to which he was holding came loose, was not entitled to relief under 46 USCS Appx § 688, when he could have done work in any manner he chose and equipment for safer method was available, in absence of any showing that batten became loose because of respondent's negligence. Smith v United States (1937, DC La) 20 F Supp 993, affd (CA5 La) 96 F2d 976, 1938 AMC 977.

Dropping of heavy fish on plank instead of handing fish to seaman in hold will reduce recovery of libellant due to contributory negligence in that chute should have been used. Petricich v Devlahovich (1952, DC Cal) 107 F Supp 871.

388. Miscellaneous

In action by seaman claiming he was injured when "cleanout" pipe rolled, crushing tip of his left toe, while he and other crew members were changing flange in main pump of dredge, trial court erred in instructing jury, over proper objection, that seaman was required to use ordinary care under circumstances for his own safety at time of accident, rather than instructing on proper standard, which is slight care. Brooks v Great Lakes Dredge-Dock Co. (1984, CA5 La) 754 F2d 536, on reh, mod (CA5 La) 754 F2d 539.

Whether or not there is rescue attempt is question for jury, and if jury finds plaintiff engaged in rescue, there must be evidence of wanton or reckless behavior on plaintiff's part before any fault may be assigned. Furka v Great Lakes Dredge & Dock Co. (1985, CA4 Md) 755 F2d 1085, cert den (US) 88 L Ed 2d 112, 106 S Ct 136.

In action brought under Jones Act by seaman injured during loading operations, trial court properly refused to give requested jury instruction on Pennsylvania rule (placing burden on ship owner to prove that ship could not have been cause of accident when vessel is operated in violation of statute), on asserted basis that qualified deckhand did not have his credentials physically aboard ship as required by 46 CFR § 185.10, where there was no conceivable causal connection between violation and injury. Mathes v The Clipper Fleet (1985, CA9 Cal) 774 F2d 980, 19 Fed Rules Evid Serv 577.

Seaman assumed risk of death by heavy wave while engaged in stretching "save-all" under direction of experienced master. Maloney v United States (1927, DC NY) 7 F Supp 14.

Master of vessel did not assume risk of sinking of vessel from latent defects which could be discovered only by hauling vessel out of water. Re Eastern Transp. Co. (1929, DC Md) 37 F2d 355, 1930 AMC 258, mod (CA4 Md) 51 F2d 494, 1931 AMC 1233.

Seaman who attempted to trim ventilator while standing on rail assumed risk. The Duquesne (1935, DC NY) 1935 AMC 344.

Plaintiff seaman, in action for damages for fall over handrail, is not contributorily negligent in failing to report unsafe condition of handrail to his supervisors where they already knew of such condition. Scarberry v Ohio River Co. (1963, SD W Va) 217 F Supp 189.

Seaman's Jones Act (46 USCS Appx § 688) claim against shipowner must fail, even though standards establishing negligence and causation under Act are somewhat lower than in tort actions at common law, because seaman's own testimony and unquestioned evidence show that seaman removing canvas from floor of dining room caused his own injury by standing up too soon and striking back on table. Alrayashi v Rouge Steel Co. (1989, ED Mich) 702 F Supp 1334.

Question of whether employer was negligent in ordering longshoreman to move strongback by hand or whether longshoreman assumed risk are for jury. Cave v Brown & McCabe, Stevedores, Inc. (1929) 128 Or 286, 274 P 505.

Seaman injured when truck broke through skid-boards while seaman was blocking wheels of truck, was not barred from recovery under 46 USCS Appx § 688 by fact that injured seaman and his fellows, all of whom were experienced seamen, inspected skidboards before they placed them in position, where it was not any part of injured seaman's duty to inspect skid-boards, and mate whose duty it was to do so made no more than casual inspection. Carlson v Wheeler-Hallock Co. (1943) 171 Or 349, 137 P2d 1001.

B. Release

389. Generally

Release by seaman through his employer differs markedly from release by ordinary worker to his employer, because seamen are wards of admiralty and their releases are subject to careful scrutiny. Kelcey v Tankers Co. (1954, CA2 NY) 217 F2d 541.

Where employer did not establish as matter of law that plaintiff's acceptance of compensation payments constituted waiver of federal maritime remedies, district court should not had granted summary judgment against plaintiff on Jones's Act Claim. Reyes v Delta Dallas Alpha Corp. (1999, CA2 NY) 199 F3d 626, 2000 AMC 776.

Seaman may settle claim and execute valid release. Ames v American Export Lines, Inc. (1941, DC NY) 41 F Supp 930; King v Waterman S.S. Corp. (1945, DC NY) 61 F Supp 969, 1945 AMC 656.

390. Relationship with other laws

That workman had given release under 46 USCS Appx § 688 and had accepted benefits from his employers was of no consequence as to his rights to compensation under 33 USCS § § 901 et seq. Pacific Employers Ins. Co. v Pillsbury (1942, CA9 Cal) 130 F2d 21, 1942 AMC 1256.

45 USCS § 55, incorporated by reference into 46 USCS Appx § 688, does not invalidate contract of release incident to fair settlement of accrued claim for seaman's damages under § 688. Bay State Dredging & Contracting Co. v Porter (1946, CA1 Mass) 153 F2d 827.

To determine whether award of Workers Compensation benefits constituted waiver of Jones Act claim, court must determine whether formal award of benefits was issued by Compensation Board and whether it became final and conclusive on parties before plaintiff commenced Jones Act claim. Mooney v City of New York (2000, CA2 NY) 213 F3d 65, amd, op replaced (2000, CA2 NY) 219 F3d 123.

391. --State laws

Local state laws or rules relating to law of releases may not be applied even if suit is tried in state court, but rules laid down by court of admiralty will control. Garrett v Moore-McCormack Co. (1942) 317 US 239, 87 L Ed 239, 63 S Ct 246, 1942 AMC 1645.

In some cases release based on measure of liability under particular state Workman's Compensation Act might conceivably be fair and reasonable settlement. Bay State Dredging & Contracting Co. v Porter (1946, CA1 Mass) 153 F2d 827.

Injured worker's Jones Act (46 USCS Appx § 688) claim against Golden Gate Bridge, Highway, and Transportation District will not be dismissed summarily on basis of California Tort Claims Act, even though Jones Act suits are subject to state waivers of sovereign immunity, because Eleventh Amendment immunity is prerequisite for state-conferred immunity, and district expressly refrains from asserting Eleventh Amendment immunity. Dougherty v Golden Gate Bridge, Highway & Transp. Dist. (1998, ND Cal) 31 F Supp 2d 724, 1998 AMC 2658.

Injured seaman who brought claims alternatively under 46 USCS Appx § 688, in maritime tort, and under state workmen's compensation laws, was barred from pursuing his other remedies following compromise and settlement of action under 46 USCS Appx § 688; injured seaman is free to select forum and remedy most favorable to him, but once having chosen, may not have two bites at apple. Jones v Baton Rouge Marine Contractors (1961, La App 1st Cir) 127 So 2d 58.

392. Construction of release

Release which purports to run to owner of several vessels, if followed or preceded by words relating to specific claims, will be disregarded, since general rule is that general words in release are to be disregarded in light of specific words relating to claims. Kelcey v Tankers Co. (1954, CA2 NY) 217 F2d 541.

393. Validity

Releases made by seamen are not treated as wholly invalid, but admiralty courts carefully scrutinize them to see that seaman has not been overreached, and that seaman has been treated with same degree of fairness as is required between trustee and cestui que trust and guardian and ward; adequacy of consideration and nature of medical and legal advice available to seaman at time of signing release are relevant to appraisal of his understanding of his rights in signing. Garrett v Moore-McCormack Co. (1942) 317 US 239, 87 L Ed 239, 63 S Ct 246, 1942 AMC 1645.

Validity of release given by seaman was matter to be determined by jury and not judge. Guerrero v American-Hawiian S.S. Co. (1955, CA9 Cal) 222 F2d 238, 1955 AMC 1035.

In action under 46 USCS Appx § 688 to recover for injuries suffered, it was for jury to determine whether seaman was permanently disabled and whether release signed was contingent upon disability being permanent, in which case release would not be valid. Wooten v Skibs A/S Samuel Bakke (1969, CA4 Va) 431 F2d 821.

Release of liability is upheld in favor of employer where seaman was injured and employer paid him $ 5,000 for executing release, because (1) employer had already paid all maintenance and cure and past wages owing, (2) seaman had adequate legal and medical advice, (3) evidence shows seaman had intelligence and capacity to understand advice he received, and (4) there is no credible evidence seaman's financial condition impaired his judgment. Braxton v Zapata Offshore Co. (1988, ED Tex) 684 F Supp 921.

Seaman's release must be held binding, in Jones Act (46 USCS Appx § 688) action arising from crushed little finger which was settled for $ 10,000 "new money" by unrepresented seaman negotiating directly with fishing vessel owner's insurer, because settlement procedure was entirely free from any "deception or coercion," and settlement amount was product of genuine negotiation. Pereira v Boa Viagem Fishing Corp. (1998, DC Mass) 11 F Supp 2d 151.

394. --Mistake, deception, coercion

Release fairly entered into and fairly safeguarding rights of seaman must be considered valid, but in determining that it is, jury may properly inquire into all factors leading up to execution of same, even including testimony that seaman had few beers and whiskeys before signing. Law v United Fruit Co. (1959, CA2 NY) 264 F2d 498, 1959 AMC 1105, cert den 360 US 932, 3 L Ed 2d 1546, 79 S Ct 1452.

Release of 46 USCS Appx § 688 claim by licensed maritime officer was binding when there was evidence that he expressly authorized his own counsel to settle claim and even if officer had claim against his own counsel for coercion or overbearing, this would not permit settlement, one which is not claimed to have been unfair, to be overturned. Gilbert v United States (1973, CA2 NY) 479 F2d 1267.

Seaman who was led to believe that settlement included promise of continued employment but was terminated on day of settlement did not fully appreciate consequences of settlement and trial court correctly set it aside. Gueho v Diamond M. Drilling Co. (1975, CA5 La) 524 F2d 986, cert den 425 US 976, 48 L Ed 2d 800, 96 S Ct 2177.

Jury's verdict and District Court's judgment on verdict annulling earlier settlement and consent decree was amply supported by evidence that seaman was promised that he could return to work as diver and that without prospect of continued employment he would not have agreed to settlement in spite of defendant's argument that consent judgment was valid and binding because seaman understood his medical prognosis was uncertain and that he accepted risk that he would not be able to resume his diving job. Gauthier v Continental Diving Services, Inc. (1987, CA5 La) 831 F2d 559.

In action under 46 USCS Appx § 688, release obtained under circumstances which deceived seamen, are not binding in subsequent libel for injuries; releases by seamen are never conclusive unless made knowingly, intentionally and with full understanding. The Henry S. Grove (1927, DC Md) 22 F2d 444.

Release is valid and binding when it is shown that it was executed freely, without deception or coercion, and that it was made by seaman with full understanding of his rights. Haddock v North Atlantic & Gulf S.S. Co. (1948, DC Md) 81 F Supp 421, 1949 AMC 49.

By verdict in plaintiff's favor, jury found by implication that release signed by plaintiff was not understood by him at time of execution. De Luca v Red Salmon Canning Co. (1934) 2 Cal App 2d 124, 37 P2d 704.

395. ----As to seaman's condition

Release fairly and freely into by seaman, with full comprehension entered will be upheld, and he cannot have release set aside on ground of mistake as to nature and extent of injuries. Sitchon v American Export Lines, Inc. (1940, CA2 NY) 113 F2d 830, cert den 311 US 705, 85 L Ed 458, 61 S Ct 171.

Release, executed by injured seaman after long hospitalization and after independent resolve to forego professional legal aid, was not invalid where neutral hospital report predicted speedier recovery than shipowner's physician although as matter of fact recovery period was much longer than ship's physician forecast. Thompson v Coastal Oil Co. (1955, CA3 NJ) 221 F2d 559, affd 350 US 956, 100 L Ed 832, 76 S Ct 345, vacated without op 350 US 985, 100 L Ed 852, 76 S Ct 471 and revd without op 352 US 862, 1 L Ed 2d 73, 77 S Ct 90.

There was no mistake of fact concerning extent of seaman's knee injury warranting setting aside of seaman's release where evidence supported finding that seaman understood causes and nature of his disability, appreciated their potential ramifications, and that possiblity of extended rehabilitation period or necessity of further medical care were risks seaman chose to accept when he signed release. Charpentier v Fluor Ocean Services, Inc. (1980, CA5 La) 613 F2d 81, reh den (CA5 La) 615 F2d 919.

Mistake as to future unknowable effect of existing facts, mistake as to future uncertain duration of known condition, or mistake as to future effect of personal injury is insufficient to set aside release of possible claim under 46 USCS Appx § 688. Robles v Trinidad Corp. (1966, SD NY) 270 F Supp 570.

Failure of claim agent of defendant ship-operator to apprise plaintiff seaman of his statutory right to general damages, in event his injuries were caused by defendant's negligence, as well as to recovery for maintenance and cure, showed that agent and plaintiff did not deal at arm's length at time agent procured release from plaintiff. Proctor v Sword Line, Inc. (1948, City Ct) 83 NYS2d 288.

396. --Necessity of competent advice

Seaman, who had no lawyer or other competent adviser representing him when he signed release including injuries and illnesses, did not thereby bar himself from action to recover for tuberculosis resulting from owner's negligence in supplying proper sleeping quarters on board its vessel, if seaman at time he signed release did not know that he had tuberculosis. Hume v Moore-McCormack Lines, Inc. (1941, CA2 NY) 121 F2d 336, 1941 AMC 1079, cert den 314 US 684, 86 L Ed 547, 62 S Ct 188.

Release given by seaman in settlement of 46 USCS Appx § 688 claim was invalid where statement given by seaman to owners' counsel, unassisted by his own counsel, did not contain facts necessary to show that liability under § 688 actually existed; seaman, unassisted by his own counsel, is not to be charged with knowledge of what is legally material and what is not, risk of not receiving all material information is on owners. Rider v Sprague S.S. Co. (1957, DC Mass) 149 F Supp 949.

397. --Requirement of disclosure by shipowner or agent

Insurance agent, negotiating with seaman who was without benefit of counsel, was under obligation to bring home to seaman understanding of rights he was giving up in exchange for settlement offered, otherwise, seaman would necessarily not be in position to make intelligent decision as to whether offer should be accepted and particularly that recovery under 46 USCS Appx § 688 was not subject to statutory maximum limits. Bay State Dredging & Contracting Co. v Porter (1946, CA1 Mass) 153 F2d 827.

Whether failure to reveal exact degree of disability impairs seaman's informed understanding of his condition necessary to validity of release will depend on facts of particular case; failure to disclose physician's diagnosis of 15 percent permanent disability did not impair seaman's ability to make informed decision regarding settlement where he had been told he would suffer some permanent disability and had testified that he knew his injured knee would never be as sturdy as it was prior to injury. Charpentier v Fluor Ocean Services, Inc. (1980, CA5 La) 613 F2d 81, reh den (CA5 La) 615 F2d 919.

Where injured seaman is not represented by counsel, it is owner's obligation to make full, fair and complete disclosure as to all of seaman's rights, including his right to sue for damages under Jones Act, and his right to wages, maintenance and cure under applicable seamen's law. Orsini v O/S Seabrooke (2001, CA9 Alaska) 247 F3d 953, 2001 CDOS 3226, 2001 Daily Journal DAR 3981.

Shipowner's claim agent bears fiduciary relation to seaman in negotiating settlement of liability for ailment contracted in service of ship, and duty is imposed on him to tell seaman facts within his knowledge respecting his condition; procuring of release from seaman discharging shipowner from all liabilities for wages, maintenance, and cure of seaman while sick, by suppressing truth as to his condition, is fraud and renders release void. Spillers v South Atlantic S.S. Co. (1942, DC Del) 45 F Supp 2, 1942 AMC 1063.

398. --Burden of proving validity

Burden rests upon one who sets up seaman's release as defense to show that it was executed freely, without deception or coercion, and that it was made by seaman with full understanding of his rights. Garrett v Moore-McCormack Co. (1942) 317 US 239, 87 L Ed 239, 63 S Ct 246.

Burden is on defendant, in seaman's action for personal injuries, to show that plaintiff's release was executed freely, without deception or coercion, and with full understanding of rights, and adequacy of consideration and nature of medical and legal advice available to plaintiff when release was signed are relevant to appraisal of this understanding. German v Carnegie-Illinois Steel Corp. (1948, CA3 Pa) 169 F2d 715, 1949 AMC 285; Haddock v North Atlantic & Gulf S.S. Co. (1948, DC Md) 81 F Supp 421.

One who claims that seaman has signed away rights must bear burden of sustaining release as having been fairly made, fully comprehended by seaman, and executed freely without deception or coercion. Kelcey v Tankers Co. (1954, CA2 NY) 217 F2d 541.

Burden is on party relying upon release to show that it was executed freely, without deception or coercion, and was made by seaman with full understanding of his rights. Law v United Fruit Co. (1959, CA2 NY) 264 F2d 498, cert den 360 US 932, 3 L Ed 2d 1546, 79 S Ct 1452.

Settlements involving seamen's rights under 46 USCS Appx § 688 are subject to careful scrutiny, burden is upon parties claiming settlement as defense in § 688 action to show that it was entered into by seaman with informed understanding of his rights and full appreciation of settlement's consequences; defendant shipowner did not bear burden of demonstrating that seaman fully appreciated consequences of settlement when during settlement negotiations, seaman, who was not represented by counsel, was told by owner's insurance adjustor that seaman could retain employment and was, after approval of settlement by District Court, terminated as employee. Gueho v Diamond M. Drilling Co. (1975, CA5 La) 524 F2d 986, cert den 425 US 976, 48 L Ed 2d 800, 96 S Ct 2177.

Seamen are considered wards of admiralty and as such releases by them are carefully scrutinized, burden is upon one who sets up release to show that it was executed freely, without deception or coercion, and that it was made by the seaman with full understanding of his rights thus in opposition to motion for summary judgment affidavit by plaintiff that he was informed that counsel would not be necessary; that he did not have information necessary to determine that amount offered was grossly inadequate; his lack of understanding of release is evidenced by subsequently having attempted to obtain workers' compensation; that he was not fully advised of rights to recover under federal law; and that claims adjuster told him that amount was all that was available for type of injury, was sufficient to preclude grant of motion. Davis v American Commercial Lines, Inc. (1987, CA6 Ky) 823 F2d 1006.

In action by seaman to recover for maintenance and cure and for damages by reason of unseaworthiness of vessel, plaintiff, being ward of court, and burden resting upon defendant to show that release was executed freely, without coercion, and that it was made by plaintiff with full understanding of his rights, question of whether release was so executed by plaintiff was question of fact for jury. German v Carnegie-Illinois Steel Corp. (1948, DC Pa) 75 F Supp 361, affd (CA3 Pa) 169 F2d 715, 1949 AMC 285.

Amount of settlement is not, in itself, determinative of validity of seaman's release of action under 46 USCS Appx § 688, but inadequate settlement adds greatly to defendant's burden of proving that no advantage was taken of seaman's relatively weaker bargaining position. Morris v Fidelity & Casualty Co. (1970, ED La) 321 F Supp 320, affd (CA5 La) 441 F2d 1146.

399. Avoidance

Release and settlement of action brought under 46 USCS Appx § 688 will not be subject to injunctive relief, in absence of showing of irreparable injury and inadequate remedy at law; appropriate remedy in case where settlement has been gained by duress, coercion or fraud is to set aside settlement. Lewis v S.S. Baune (1976, CA5 La) 534 F2d 1115, reh den (CA5 La) 545 F2d 1299 and reh den (CA5 La) 545 F2d 1299 and reh den (CA5 La) 545 F2d 1299 and reh den (CA5 La) 545 F2d 1299 and (disagreed with Lampsis Navigation, Ltd. v Ortiz De Cortes (CA2 NY) 694 F2d 934 (disagreed with Re Complaint of Bankers Trust Co. (CA3 Pa) 752 F2d 874, 17 Fed Rules Evid Serv 128, 40 FR Serv 2d 1181, later proceeding (CA3 Pa) 775 F2d 545, 3 FR Serv 3d 159)).

District Court should have permitted seaman to proceed with action to recover additional damages for injuries, notwithstanding prior judgment which incorporated settlement reached by parties, where (1) prior judgment did not result from litigated determination of merits, (2) pleadings and joint stipulation of facts in prior action were prepared by employer and agreed to by seaman without advice of counsel, (3) court's prior judgment mirrored language used in stipulation of facts, and (4) absence of record of prior proceeding raised possibility that court merely rubber-stamped parties' extrajudicial agreement; in new action, employer may claim prior settlement as defense, but employer must bear burden of proving that seaman had informed understanding of significance of settlement when he signed it. Wink v Rowan Drilling Co. (1980, CA5 La) 611 F2d 98, cert den 449 US 823, 66 L Ed 2d 26, 101 S Ct 84.

Trial court correctly set aside release where seaman was young man of little education, did not have advice of counsel, did not have doctor of his own choosing, was ill, recalled no discussion of release, and stated that he did not understand that he had signed release. Premeaux v Socony-Vacuum Oil Co. (1946) 144 Tex 558, 192 SW2d 138.