Jones Act Law Maritime Injury Year Statute of Lmitation File Lawsuit Death Negligence Claim

400. --Tender of settlement amount

Jones Act seaman who claims that he has been induced by fraud to settle claim for personal injuries is not required as condition to prosecuting claim in court to return settlement proceeds to employer. Smith v Pinell (1979, CA5 La) 597 F2d 994.

To avoid release for personal injury under 46 USCS Appx § 688, money received in consideration for release must be returned or tendered and brought into court. Thornton v Puget Sound Power & Light Co. (1930, DC Wash) 49 F2d 347.

401. Effect of release

Seaman, who was in ill health before he embarked on voyage, and who executed release for consideration of thirty-five dollars, was thereby barred from future action for damages alleging illness resulting from damp quarters, no fraud or deception having been practiced on him in procuring release. McKenney v Swayne & Hoyt, Ltd. (1939, CA5 La) 104 F2d 20, 1939 AMC 803, cert den 308 US 601, 84 L Ed 502, 60 S Ct 138.

In libel against United States for damages for personal injuries sustained by seaman aboard vessel owned and operated by respondent, defense that libellant, after his injury, made claim for and accepted compensation and other benefits in substantial amount pursuant to 5 USCS § § 8101 et seq. should stand; such defense was not insufficient because it merely alleged acceptance of compensation and not acceptance of compensation under order of commission. Militano v United States (1943, DC NY) 55 F Supp 904, 1944 AMC 1250.

Plaintiff who entered into state court-approved settlement which expressly released respondents from liability under Louisiana workmen's compensation act, 46 USCS Appx § 688, 33 USCS § § 90 et seq., in tort, in admiralty, at common law, or otherwise, including all claims for wages, maintenance, and cure, or failure to pay wages, maintenance, and cure, was precluded from maintaining subsequent suit in federal District Court for personal injuries under 46 USCS Appx § 688, or under general maritime law. Comeaux v Two-R Drilling Co. (1964, ED La) 236 F Supp 735, 1965 AMC 1058.

Injured seaman has one claim under 46 USCS Appx § 688 for injuries and recovery from same accident against employer, and having entered into settlement, cannot bring second action against employer under 46 USCS Appx § 688. Hickman v Ohio Barge Line, Inc. (1974, WD Pa) 376 F Supp 1092.

402. --Of third parties

Where seaman was injured while crossing pier on his way to street for shore leave, due to negligence of third party, his release of third party for damages for tort did not operate as release of liability of owner of seaman's vessel for maintenance and cure. Jones v Waterman S.S. Corp. (1946, CA3 Pa) 155 F2d 992, 1946 AMC 859.

In action under 46 USCS Appx § 688, injured seaman may partially settle negligence claim with one of two alleged tortfeasors, sue and obtain verdict for total damages against nonsettling alleged tortfeasor, and receive judgment for difference between total damages and settlement. Billiot v Sewart Seacraft, Inc. (1967, CA5 La) 382 F2d 662.

Where purser injured on wharf while in performance of duties for shipowner gave wharf owner his covenant not to sue, he did not thereby waive any rights against ship. Gomes v Pereira (1941, DC Mass) 42 F Supp 328, 1942 AMC 481.

Effect to be given release signed by seaman is to be determined by intentions of party involved; release operates only against party to whom it was directed, and does not release other parties or potential defendants from liability. Leach v Mon River Towing, Inc. (1973, WD Pa) 363 F Supp 637.

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

403. --By third parties

Compromise and settlement entered into by wife of decedent seaman, individually and on behalf of decedent seaman's children, will serve as valid defense to action brought under 46 USCS Appx § 688 by mother of seaman, who had participated in valid settlement. Hassan v A. M. Landry & Son, Inc. (1963, CA5 La) 321 F2d 570, cert den 375 US 967, 11 L Ed 2d 416, 84 S Ct 486.

C. Limitations of Actions

1. Statutory Limitations

404. Applicable limitation period

3 year period of limitations of 46 USCS Appx § 688 does not apply in suit against Government brought by seaman under Suits in Admiralty Act (46 USCS Appx § § 741 et seq.). Keil v United States (1946, DC Md) 65 F Supp 431, 1946 AMC 653.

Longshoreman doing work as seaman is entitled to 3 year statute of limitations of Jones Act, 46 USCS Appx § 688. Daniels v States Marine Corp. (1960, ED La) 184 F Supp 815.

If 46 USCS Appx § 688 proceeding is to be instituted, it must be commenced within statutory period of three years from date of injury or, in event of death, within three years from date of death, and filing of limitation of liability proceeding does not toll statute. Petition of United States (1964, ED NC) 237 F Supp 434, 1964 AMC 1725, affd (CA4 NC) 346 F2d 449, 1965 AMC 1179, cert den 382 US 878, 15 L Ed 2d 119, 86 S Ct 163.

Actions under 46 USCS Appx § 688 are subject to three year statute of limitations. West v M/V Coan River (1970, ED Va) 312 F Supp 1038, supp op (ED Va) 330 F Supp 966.

405. --Applicability of Federal Employer's Liability Act (45 USCS § § 51 et seq.)

3 year limitation in Federal Employers' Liability Act (45 USCS § 56) is incorporated by reference by 46 USCS Appx § 688. Pope v McCrady Rodgers Co. (1947, CA3 Pa) 164 F2d 591; Streeter v Great Lakes Transit Corp. (1942, DC NY) 49 F Supp 466; Ran v Atlantic Refining Co. (1949, DC Pa) 87 F Supp 853; Turner v American Dredging Co. (1976, ED Pa) 407 F Supp 1047, affd without op (CA3 Pa) 556 F2d 568.

Both under 45 USCS Appx § 51 et seq., and 46 USCS § 688, with its incorporation of limitations from other statutes, time provision has been regarded as part of right itself. Pope v McCrady Rodgers Co. (1947, CA3 Pa) 164 F2d 591, 1948 AMC 33.

Negligent injury claim is barred by provision of Federal Employers' Liability Act, 45 USCS § 56, as adopted by Jones Act, 46 USCS Appx § 688, where such action is not commenced within 3 years from day cause of action accrued. Claussen v Mene Grande Oil Co. (1960, CA3 Del) 275 F2d 108.

46 USCS Appx § 688 does not preclude resort to admiralty, and in pursuance of remedy in admiralty, limitations of 45 USCS § 56 do not apply. Rosinski v Conners (1927, DC NY) 21 F2d 591, 1928 AMC 591.

That Congress, when it amended 45 USCS § § 51 et seq. to extend statute of limitations from two to three years, made no exception with respect to existing rights under 46 USCS Appx § 688 raises strong presumption that it intended to make none. Chisholm v Cherokee-Seminole S.S. Corp. (1940, DC NY) 36 F Supp 967, 1940 AMC 1580; Gahling v Colabee S.S. Co. (1941, DC Pa) 37 F Supp 759, 1941 AMC 600; Streeter v Great Lakes Transit Corp. (1942, DC NY) 49 F Supp 466.

In libel in personam by seaman for personal injuries alleging that respondent was negligent in failing to furnish libellant with safe place to work and with suitable equipment and supplies for performance of his work, statute of limitations provided by 45 USCS § 56 was applicable. Bogdanovich v Gasper (1941, DC Cal) 41 F Supp 457, 1941 AMC 1457.

Seaman who was injured on board vessel in July or August, 1944, and did not file his action until April 14, 1949, was barred by three-year limitation of 45 USCS § § 51 et seq., which was incorporated in 46 USCS Appx § 688 by reference. Ran v Atlantic Refining Co. (1949, DC Pa) 87 F Supp 853.

In suit under Jones Act, 46 USCS Appx § 688, statute of limitations governing suits under Federal Employers' Liability Act, 45 USCS § 56, is applicable. Purvis v Luckenbach S.S. Co. (1949, DC NY) 93 F Supp 271.

46 USCS Appx § 688 gives to any seaman who shall suffer personal injury in course of his employment right to maintain action at law for damages against his employer, but action begun more than 4 years after accident occurred was barred by 3-year statute of limitations under 45 USCS § 56. Phillips v Luckenbach S.S. Co. (1964, SD NY) 227 F Supp 195, 1964 AMC 2486.

Inasmuch as plaintiffs sought to characterize negligence action for personal injuries that one of plaintiffs received while he was employed as deep sea diver aboard movable drilling barge on Coastal Shelf off Trinidad as arising under 46 USCS Appx § 688, negligence claim would be governed by express three year limitation in Federal Employers' Liability Act (45 USCS § 56); thus, where there was no claim that statute had been tolled or defendants estopped, such 46 USCS Appx § 688 claim was barred. Francis v Pan American Trinidad Oil Co. (1975, DC Del) 392 F Supp 1252, 21 FR Serv 2d 489.

Action under 46 USCS Appx § 688 must be brought within three year statute of limitations found in FELA [46 USCS § 56]. Fitzgerald v Angela Compania Naviera, S. A. (1976, SD NY) 417 F Supp 151 (disapproved on other grounds De Mateos v Texaco, Inc. (CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449) and revd on other grounds (CA2 NY) 592 F2d 58, cert dismd 443 US 928, 61 L Ed 2d 897, 100 S Ct 15.

Injured seaman's Jones Act claim is time-barred, where seaman was injured aboard ship on 12/12/81, shipowner filed for bankruptcy on 12/1/83, bankruptcy stay was lifted 8/9/86 and seaman (who had previously filed complaint then voluntarily dismissed it) filed new complaint in 1/89, because Act incorporates 3-year limitations period of 45 USCS § 56, and limitations clock was tolled only during pendency of bankruptcy stay. McKinney v Waterman S.S. Corp. (1990, DC Mass) 739 F Supp 678.

406. --Combined causes of action

Appropriate period of limitations for seaman's action for unseaworthiness, where combined with action under 46 USCS Appx § 688, must be determined with eye to practicalities of admiralty personal injury litigation; in suit combining action for unseaworthiness with action under 46 USCS Appx § 688, court cannot apply to former shorter period of limitations than Congress has prescribed for latter; and this is so whether action is at law or in admiralty, in state or in federal courts. McAllister v Magnolia Petroleum Co. (1958) 357 US 221, 2 L Ed 2d 1272, 78 S Ct 1201 (not followed Public Admr. of County of New York v Angela Compania Naviera, S.A. (CA2 NY) 592 F2d 58, cert dismd 443 US 928, 61 L Ed 2d 897, 100 S Ct 15) and (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.

In action based both on Jones Act, 46 USCS Appx § 688, and unseaworthiness, where employee was not seaman within purview of 46 USCS Appx § 688 statute of limitations contained in Jones Act is not applicable and court may look to state statutes of limitation in deciding what time limit to impose. Kyles v James W. Elwell & Co. (1961, CA7 Ill) 296 F2d 703, cert den 369 US 852, 8 L Ed 2d 10, 82 S Ct 936.

Where action for unseaworthiness is combined with action for negligence under 46 USCS Appx § 688, and latter action is barred by time limitations, action for unseaworthiness does not necessarily fall, and action for unseaworthiness can save time-barred action. Campanile v Societa G. Malvicini (1959, DC NY) 170 F Supp 667, 1959 AMC 2351.

In combined action under 46 USCS Appx § 688 and general maritime law, claim under 46 USCS Appx § 688 is subject to 3 year statute of limitations of 45 USCS § 56; claim for negligence arising out of general maritime law is subject to admiralty doctrine of laches. Scott v United Fruit Co. (1961, SD NY) 195 F Supp 278.

In action for wrongful death, one count based on unseaworthiness and others on negligence, court cannot apply to former shorter limitations than congress has prescribed for latter, even though event occurred in state territorial waters. Thomas v C.J. Langenfelder & Son, Inc. (1971, DC Md) 324 F Supp 325.

Jones Act, 46 USCS Appx § 688, provides more appropriate statute of limitations where representative of seaman's estate is pursuing remedies under both Jones Act, 46 USCS Appx § 688, and cause of action under general maritime law. Powell v F.J. O'Hara & Sons, Inc. (1976, DC Me) 411 F Supp 377.

Since claims under Jones Act, 46 USCS Appx § 688, for negligence and under general maritime law for unseaworthiness are but alternative "grounds" for single cause of action, and since seamen have right, by statute, to bring their actions under 46 USCS Appx § 688 within 3 years, shorter limitation period cannot be imposed upon unseaworthiness claim so as to effectively diminish 3 year life of Jones Act claim. Wurz v Santa Fe International Corp. (1976, DC Del) 423 F Supp 91, 22 FR Serv 2d 1103.

407. --Effect of state limitation statutes

Congress, within its constitutional power, decreed 3 year statute of limitations for cases under 46 USCS Appx § 688, and no state statute can diminish that period. Engel v Davenport (1926) 271 US 33, 70 L Ed 813, 46 S Ct 410; Cox v Roth (1955) 348 US 207, 99 L Ed 260, 75 S Ct 242; McAllister v Magnolia Petroleum Co. (1958) 357 US 221, 2 L Ed 2d 1272, 78 S Ct 1201 (not followed Public Admr. of County of New York v Angela Compania Naviera, S.A. (CA2 NY) 592 F2d 58, cert dismd 443 US 928, 61 L Ed 2d 897, 100 S Ct 15) and (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.

Where limitation is provided by federal statute, state statutes of limitation and decisions of state courts construing them have no application. Port v Litolff (1939, CA5 La) 103 F2d 302, 1939 AMC 607.

408. Substantive character of limitation period

Statute of limitation contained in 45 USCS § 56, incorporated by reference in Jones Act, 46 USCS Appx § 688, is one of substantive right setting limit to existence of obligation which Act creates and is limitation on right created by statute. O'Neill v Cunard White Star, Ltd. (1946, DC NY) 69 F Supp 943.

409. Commencement of limitation period--illness

Diagnosis of tuberculosis, rather than manifestation of individual symptoms, began running of statute of limitations in action under 46 USCS Appx § 688 and 46 USCS Appx § § 741 et seq. Bradt v United States (1955, CA2 NY) 221 F2d 325, 1955 AMC 1481.

Machinist's cause of action under Jones Act for exposure to asbestos accrued when he knew or should have known that he suffered from asbestosis. Petersen v Chesapeake & O. R. Co. (1986, CA6 Mich) 784 F2d 732.

Cause of action of seaman accidentally soaked with toxic chemicals had accrued where seaman felt dizziness, leg cramps, and persistent stinging sensation in feet and fingers, even though seaman did not have disease at time of action. Hagerty v L & L Marine Services, Inc. (1986, CA5 La) 788 F2d 315.

Statute or period of limitations begins when libelant is informed of his illness by physician. Muse v Freeman (1961, ED Va) 197 F Supp 67, 5 FR Serv 2d 1042.

Drilling rig mechanic's Jones Act claims against employer fail, where mechanic knew of his exposure and adverse reaction to toxins, especially paint fumes, as early as 1970, and cause of action accrued no later than 1984 under "perceptible injury with appreciable manifestations" analysis, because suit filed in 1988 was too late under 3-year prescriptive period. Crisman v Odeco, Inc. (1990, ED La) 736 F Supp 712.

410. --Injury

Although statement to plaintiff asserting claim under Jones Act for bladder cancer caused by exposure to chemicals, during treatment for glaucoma, that he had chemical spots in eyeballs and would have problems with eyes in 10 to 12 years was not sufficient to put him on notice that he had to sue for all existing future manifestations of illness due to exposure, combination of knowledge of such statement with later blindness should have reasonably put him on notice that he had been exposed to chemicals and suffered damage therefore and was sufficient to begin running of 3-year statute of limitations. Hicks v Hines, Inc. (1987, CA6 Ky) 826 F2d 1543.

Plaintiff who possessed or had reasonable opportunity to discover critical facts of injury claimed to have been suffered and had knowledge or reasonable opportunity to discover cause of such injury at time he was last exposed to chemical vapors while employed aboard defendants' push boats transporting barges of chemicals and failed to bring action within 3 years after last exposure is barred by applicable statute of limitations. Clay v Union Carbide Corp. (1987, CA5 La) 828 F2d 1103.

Under 46 USCS Appx § 688, action for seaman's pain and suffering accrues at time of injury, while wrongful death action accrues at his death. Burns v Marine Transport Lines, Inc. (1962, SD NY) 207 F Supp 276.

Limitation period on action for injury commences on date of injury. Nasser v Hudson Water Ways Corp. (1983, WD Wash) 563 F Supp 88.

411. --Death

Limitation runs from date of death of seaman, and not from date of appointment of administrator, and running of limitation destroys cause of action. Petition of Clinchfield Nav. Co. (1928, DC NY) 26 F2d 290, 1928 AMC 631.

Motion for judgment non prosequitur will be sustained where it is alleged, in action to recover for wrongful death, that decedent met his death through wrongful acts of defendant in 1927, was declared presumed decedent in 1935, and administrator appointed who brought suit in 1936, since cause of action accrued in 1927 and former two-year statute of limitation had run. Philpott v Vesta Coal Co. (1937, DC Pa) 21 F Supp 37.

Cause of action under 46 USCS Appx § 688 accrues at time of death and not of appointment of personal representative. O'Neill v Cunard White Star, Ltd. (1946, DC NY) 69 F Supp 943.

Death action by administratrix was barred, where death of seaman occurred more than three years prior to institution of action, though deceased could not be declared legally dead for seven years under state law. Riley v Osuthern Transp. Co. (1950, DC NY) 90 F Supp 842, 1950 AMC 1695, affd (CA2 NY) 192 F2d 391.

412. --Other

End of voyage rather than date of injury commences limitations period for action alleging continuing negligent medical care on board ship after injury; limitation period on action for injury itself commences on date of injury. Nasser v Hudson Water Ways Corp. (1983, WD Wash) 563 F Supp 88.

413. Extension or tolling

Action brought by two Greek citizens seeking damages under 46 USCS Appx § 688 from foreign corporation was barred by statute of limitation as suit was filed more than 5 years after accident, notwithstanding plaintiffs' contention that 3 year prescriptive period could not have run against them because, under jurisdictional doctrines of Supreme Court, they had no cause of action until decision of Hellenic Lines, Ltd. v Rhoditis (1970) 398 US 306, 26 L Ed 2d 252, 90 S Ct 1731, reh den 400 US 856, 27 L Ed 2d 94, 91 S Ct 23; decision recognizing right of action to sue after prescriptive period has run does not retroactively interrupt running of limitation period. Zorgias v SS Hellenic Star (1972, ED La) 370 F Supp 591, affd (CA5 La) 487 F2d 519.

Running of statutory limitations period under Jones Act (46 USCS Appx § 688) is not tolled by infancy of minor children for whom plaintiff sues as next friend. Sanchez v Loffland Bros. Co. (1980, CA5 Tex) 626 F2d 1228, reh den (CA5 Tex) 636 F2d 315 and cert den 452 US 962, 69 L Ed 2d 974, 101 S Ct 3112.

Discovery of latent injury rule does not apply to toll statute of limitations and justify plaintiff's failure to file suit for over 12 years where plaintiff knew both that he was injured and cause of injury when injury occurred. Albertson v T.J. Stevenson & Co. (1984, CA5 Tex) 749 F2d 223.

Action for death of deckhand for terminal illness while aboard vessel under Jones Act, is not tolled, and three-year statute of limitation bars action, where case was twice dismissed due to jurisdictional defects; plaintiff failed to demonstrate that she, mother of deceased seaman, was proper candidate to receive benefits of equity and failed to demonstrate sufficient diligence in bringing her claim. Covey v Arkansas River Co. (1989, CA5 Miss) 865 F2d 660.

Court will not apply doctrine of equitable tolling for period of time when plaintiff's case was pending in state court where he slept on his federal rights for over 4 months after state court dismissed complaint, which was over 3 years after accrual of claim, and he failed to answer defendant's motion for summary judgment in federal court. Weathers v Bean Dredging Corp. (1994, CA8 Ark) 26 F3d 70.

In action under Jones Act, 46 USCS Appx § 688, where there is no evidence that claimant relied on any misrepresentation of material fact by defendant's claims agent, or that agent's advice was in any way responsible for delay of filing suit, Jones Act claim is barred after 3 years. Peck v United States Steel Corp. (1970, DC Minn) 315 F Supp 905, affd (CA8 Minn) 446 F2d 891, cert den 404 US 1019, 30 L Ed 2d 667, 92 S Ct 682.

46 USCS Appx § 688 suit is not saved by state statute permitting commencement of new action after expiration of statute of limitations, but within 1 year after termination other than on merits of earlier, timely action for same cause. Ali v Moore-McCormack Lines, Inc. (1955) 286 App Div 462, 144 NYS2d 682.

Suit under 46 USCS Appx § 688 was governed by limitation provision of 45 USCS § 56, and state savings provision was inapplicable to toll federal statute of limitations. Izquierdo v Cities Service Oil Co. (1965) 47 Misc 2d 1087, 264 NYS2d 58.

414. --Hardship and special circumstances

Delay in prosecuting suit is not necessarily ground for dismissal when plaintiff lived in distant state, was unable to afford trip to forum, and could not get in touch with his lawyer, and record proper did not show any disadvantage to defendant. Russell v Texas Transport & Terminal Co. (1929, CA2 NY) 32 F2d 689.

Running of statute of limitation, whether statute is merely procedural, or, as in cases under 46 USCS Appx § 688, substantive, is tolled by period of time libellant was prisoner of war in hands of enemy and courts were unavailable to him. Osbourne v United States (1947, CA2 NY) 164 F2d 767, 1948 AMC 121.

Delay in filing civil action under 46 USCS Appx § 688 within statutory period may be excused when occasioned by special circumstances beyond control of injured or ill seaman, and under special circumstances defendant may be estopped from asserting statute of limitations or laches as bar to prosecution of seaman's action. Mroz v Dravo Corp. (1970, CA3 Pa), 429 F2d 1156.

Equitable tolling of 3-year Jones Act limitations period was not warranted where injured deckhand filed timely Jones Act claim in state court, defendant filed bankruptcy 3 years later, thereby staying Jones Act claim, deckhand filed proof of claim with Bankruptcy Court, which went to claims resolution procedure, deckhand voluntarily dismissed state action, and then unexplainedly delayed 14 months after failure of claims resolution procedure before filing Jones Act claim in federal court. Mamer v Apex R.E. & T. (1995, CA 8 Mo) 59 F3d 780.

415. --By filing action

Suit filed in good faith, within period of limitation, is commenced on day of filing, if service is made within reasonable time thereafter. Port v Litolff (1939, CA5 La) 103 F2d 302, 1939 AMC 607.

Owner's liability for unseaworthiness is subject to limitation; and in proceeding in matter of petition for exoneration from and limitation of liability of owner of fishing vessel which disappeared with master and crew of six, in order to protect claimants from running of statute of limitations under 46 USCS Appx § 688, claimants should be permitted to institute actions at law, but enjoined from prosecution of claims pending determination of issues in no-fund limitation proceedings. Petition of Wood (1956, CA2 NY) 230 F2d 197, 1956 AMC 547.

Earlier suit filed on claim in Southern District of New York less than 3 years after accident does not toll statute of limitations for entirely distinct action filed years later in district of Delaware. Claussen v Mene Grande Oil Co. (1960, CA3 Del) 275 F2d 108.

Federal limitation is tolled by timely filing of action in state court, which is later dismissed for improper venue even though service of process was not made within statutory period but was made within a reasonable time and defendant had notice of claim within statutory period. Maxwell v Swain (1987, CA5 La) 833 F2d 1177.

Filing of proceeding under 46 USCS Appx § 183 to limit liability does not toll limitation period under 46 USCS Appx § 688. Petition of United States (1964, ED NC) 237 F Supp 434, 1964 AMC 1725, affd (CA4 NC) 346 F2d 449, 1965 AMC 1179, cert den 382 US 878, 15 L Ed 2d 119, 86 S Ct 163.

Statute of limitations was tolled where when original suit was dismissed for lack of sufficient minimum contact between defendants and state, plaintiff immediately filed motion for reconsideration and filed his action in proper court. Reynolds v Logan Charter Service, Inc. (1983, ND Miss) 565 F Supp 84.

Where wrongful death action under 46 USCS Appx § 688 was filed one day prior to running of 3 year statute of limitations, as provided in--45 USCS § 56 by one who was not actually appointed as decedent's personal representative until one day after running of statute of limitations, such suit was barred by statute of limitations and trial court correctly sustained plea in abatement to complaint. Strickland v Mobile Towing & Wrecking Co. (1974) 293 Ala 348, 303 So 2d 98.

Suit under 46 USCS Appx § 688 was not barred where summons was handed sheriff on day before limitation period expired, even though summons was served on defendant after expiration date. Irons v Michigan-Atlantic Corp. (1951) 279 App Div 32, 108 NYS2d 824.

416. Effect of expiration on maritime remedies

After statute of limitations set out in 45 USCS § 56 has run against cause of action under 46 USCS Appx § 688, only remedy remaining to injured seaman is in admiralty. Rogosich v Union Dry Dock & Repair Co. (1933, CA3 NJ) 67 F2d 377, 1934 AMC 219.

Where plaintiff filed his claim after three-year statute of limitations had run, all rights under 46 USCS Appx § 688 were extinguished and plaintiff's only available remedy for his cause of action, which was in part grounded on right based on ancient maritime law, was in admiralty. Wounick v Pittsburgh Consolidation Coal Co. (1960, CA3 Pa) 283 F2d 325, 91 ALR2d 1411, 1961 AMC 1160, cert den 364 US 902, 5 L Ed 2d 195, 81 S Ct 234.

Seaman already barred from prosecuting negligence action under 45 USCS § 56 may not maintain action for personal injuries solely grounded upon unseaworthiness without regard to three-year limitation period incorporated by reference into 46 USCS Appx § 688 Banks v United States Lines Co. (1968, ED Va) 293 F Supp 62.

417. Amendment of complaint following expiration; as to cause of action

Cause of action originally brought under 46 USCS Appx § 688 was barred by limitations where complaint was amended after limitations had run so as to set up cause of action at common law against which state statute of limitations had run. D'Allesandro v United Marine Contracting Corp. (1928, DC NY) 30 F2d 718, 1929 AMC 77.

Where plaintiff filed action in admiralty against shipowner predicating jurisdiction upon general maritime and admiralty laws of United States, alleging he was injured due to unseaworthiness of vessel, and 4 years later, 1 week before trial, plaintiff filed amendment pleading diversity of citizenship and alleging negligence of shipowner, 3 year statute of limitations in 46 USCS Appx § 688 was not bar to any action against shipowner on negligence claim because alleged negligent acts of vessel's officers arose out of occurrence initially pleaded, and was not distinct and unrelated transaction. Williams v Shipping Corp. of India, Ltd. (1973, SD Ga) 354 F Supp 626, 17 FR Serv 525.

Since allegations of ultimate fact in original complaint were sufficient to permit recovery under 46 USCS Appx 688 complaint could be amended after statute of limitations had run to expressly state cause of action under § 688. Dowski v Merritt-Chapman & Scott Corp. (1946, Sup) 65 NYS2d 890, affd 271 App Div 874, 66 NYS2d 635.

418. --As to defendants

In 46 USCS Appx § 688 action, request to amend complaint to add defendant was allowed after period of limitations had run since action itself had been commenced within statutory period. Rademaker v E. D. Flynn Export Co. (1927, CA5 Ala) 17 F2d 15.

Although libel was filed against "Atlantic Steamship Company" three days before expiration of limitation under 45 USCS § 56 and ex parte order permitting amendment of libel changing name of respondent to "South Atlantic Steamship Co. of Delaware" was entered six days after limitation had run, suit under 46 USCS Appx § 688 was barred by extinguishment of right to sue, and result could not be waived. Kirby v South Atlantic S.S. Co. (1938, DC Del) 25 F Supp 477, 1939 AMC 90.

Mere misnomer of defendant in complaint timely filed, and actually served upon real defendant, prior to running of statute of limitations, will not prevent amendment of complaint so as to correctly name defendant after running of statute. Godfrey v Eastern Gas & Fuel Associates (1947, DC Mass) 71 F Supp 175.

419. --As to particulars

Amendment of petition after limitation period had run with respect to date of accident and particulars of negligence did not state new and different cause of action. Lykes Bros. S.S. Co. v Esteves (1937, CA5 Tex) 89 F2d 528, 1937 AMC 907.

Amendment of 46 USCS Appx § 688 complaint was allowed at opening of trial, even though amendment alleged different vessel and date of attack on plaintiff by fellow seaman than originally pleaded and though 3 year statute of limitations had run, where judge found that true facts as to time and place of assault were known to, or could have been ascertained by defendant, where judge found plaintiff had suffered from amnesia which made it difficult for him to remember true facts, and where finding was amply supported by evidence. Kelcey v Tankers Co. (1954, CA2 NY) 217 F2d 541.

In suit seeking damages for death caused by contraction of leukemia aborad ship, originally alleging exposure to hazardous substances and asbestos, amendment of complaint stripping it of allegations of asbestos exposure and adding allegations of exposure to benzene sufficiently related back to original complaint and was not barred by statute of limitations. Miller v American Heavy Lift Shipping (2000, CA6 Ohio) 231 F3d 242, 2000 FED App 384P, 2001 AMC 1126, 48 Fed Rules Serv 3d 240.

420. Waiver or estoppel of assertion of limitation period

Defendant cannot waive defense of period of limitations in 46 USCS Appx § 688 action. Atlantic C. L. Railroad v Burnette (1915) 239 US 199, 60 L Ed 226, 36 S Ct 75 (not followed Dawson Constr. Co. (EBCA) 81-2 BCA P 15162 (disagreed with by multiple cases as stated in Circle S Sales (HUD BCA) 82-1 BCA P 15678)); Oliver v Calmar S.S. Co. (1940, DC Pa) 33 F Supp 356.

Under special circumstances, defendant may be estopped from asserting statute of limitations or laches as bar to prosecution of seaman's action under 46 USCS Appx § 688. Mroz v Dravo Corp. (1970, CA3 Pa) 429 F2d 1156.

Although equitable estoppel can toll statute of limitations in action under 46 USCS Appx § 688, where there was evidence that insurance broker talked to plaintiff in general terms asking him to assemble some medical reports and bills and plaintiff was told that anytime he was ready he could get together with broker, and there was no evidence that statute of limitations was mentioned or discussed and plaintiff assured broker that there was no possibility of suit under any circumstances there was no evidence either of deceptive conduct or of reliance sufficient to warrant prohibiting limitations defense. Clauson v Smith (1987, CA1 RI) 823 F2d 660.

Where defendant, in obtaining release from plaintiff, did not misrepresent or mislead plaintiff into delaying suit, it would not be estopped from invoking applicable statute of limitations to bar plaintiff's claim under 46 USCS Appx § 688. Turner v American Dredging Co. (1976, ED Pa) 407 F Supp 1047, affd without op (CA3 Pa) 556 F2d 568.

2. Laches

421. Generally

Admiralty doctrine of laches applies even though suit is action at law on civil side of court. Oroz v American President Lines, Ltd. (1958, CA2 NY) 259 F2d 636, cert den 359 US 908, 3 L Ed 2d 572, 79 S Ct 584; Seals v States Marine Lines, Inc. (1960, ED La) 188 F Supp 398, 1962 AMC 2552.

In claim for injury on high seas, applicable principle with respect to effect of seaman's delay in bringing suit is laches and not statute of limitations, regardless of whether suit is treated as libel in admiralty, or is action on law side of federal court based on diversity of citizenship under savings clause, 28 USCS § 1333(1), or even if brought in State Court under savings clause. Larios v Victory Carriers, Inc. (1963, CA2 NY) 316 F2d 63.

In action brought under 46 USCS Appx § 688 laches is more than time; rather it is time plus prejudicial harm, which is delay which subjects defendant to disadvantage in asserting and establishing claimed right or defense. Molnar v Gulfcoast Transit Co. (1967, CA5 Fla) 371 F2d 639.

Laches as defense to admiralty suit is not to be measured by strict application of statutes of limitation; instead, rule is that delay which will defeat such suit must in every case depend on peculiar equitable circumstances of that case; laches is no bar where there has been no inexcusable delay and no prejudice to defendant. Espino v Ocean Cargo Line, Ltd. (1967, CA9 Cal) 382 F2d 67.

Shipowner may not plead limitation of liability under 46 USCS Appx § § 181 et seq. as defense in action under 46 USCS Appx § 688 where he has been guilty of laches or unreasonable delay in asserting such defense. Odegard v E. Quist, Inc. (1961, ED NY) 199 F Supp 449.

Where there has been delay in filing suit, equitable doctrine for laches cannot be used in determining whether claim under Jones Act, 46 USCS Appx § 688, may be maintained where there is no evidence that claimant relied on any misrepresentation of material fact by defendant's claims agent or that agent's advice was in any way responsible for delay in filing suit. Peck v United States Steel Corp. (1970, DC Minn) 315 F Supp 905, affd (CA8 Minn) 446 F2d 891, cert den 404 US 1019, 30 L Ed 2d 667, 92 S Ct 682.

There are two elements for successful plea of laches: (1) delay in seeking remedy on part of plaintiff, and (2) prejudice to defendants resulting from that delay; in determining when unreasonable delay in seeking remedy exists, court will look for analogy to applicable statute of limitations after analogous statute of limitations has run. La Lande v Gulf Oil Corp. (1970, ND La) 317 F Supp 692.

There is no statute of limitations in admiralty; court will determine timeliness of actions using doctrine of laches. Francis v Pan American Trinidad Oil Co. (1975, DC Del) 392 F Supp 1252, 21 FR Serv 2d 489.

422. Court's discretion

Existence of laches is question primarily addressed to discretion of trial court. Alberts v American President Lines, Ltd. (1962, SD NY) 207 F Supp 666.

423. Combined actions

In action brought under 46 USCS Appx § 688, and also under admiralty for maintenance and cure, claim filed 9 years after occurrence of injury will be barred by laches. Claussen v Mene Grande Oil Co. (1960, CA3 Del) 275 F2d 108.

In combined action under Jones Act, 46 USCS Appx § 688, and for unseaworthiness, even though Jones Act is time barred, party guilty of laches can still maintain action by carrying burden of showing excusable delay. Campanile v Societa G. Malvicini (1959, DC NY) 170 F Supp 667.

424. Use of analogous statutory limitation

In applying doctrine of laches courts of admiralty customarily follow analogy of state statute limitations and hold claim barred unless libelant shows special circumstances excusing delay. Wilson v Northwestern Marine Iron Works (1954, CA9 Or) 212 F2d 510.

One having judicially recognized status to assert right of seaman in action against vessel owner is entitled to 3-year limitations period under 46 USCS Appx § 688, rather than analogous limitation period of local law; local law may be used as reference guide in determining whether maritime principle of laches bars action. Flowers v Savannah Machine & Foundry Co. (1962, CA5 Ga) 310 F2d 135.

Doctrine of laches may be applied by analogy to limitation applicable to 46 USCS Appx § 688 cases to bar assertion of unseaworthiness as basis for seaman's claim for damages in suit brought more than three years after accident occurred. Lipfird v Mississippi Valley Barge Line Co. (1962, CA3 Pa) 310 F2d 639, 1963 AMC 2160.

Limitation of 46 USCS Appx § 688, is more logical and acceptable polestar in determining laches than that of local state statute; 46 USCS Appx § 688 relates to personal injuries on navigable waters, was presumably adopted with seaman's circumstances in mind, and is of national application; defendant is aided in proving element of prejudice in plaintiff's delay in bringing suit by inference of prejudice warranted by plaintiff's delay. Giddens v Isbrandtsen Co. (1966, CA4 Va) 355 F2d 125.

Right to proceed under allegations of unseaworthiness under general maritime law are subject only to admiralty doctrine of laches and not to statute of limitations of Jones Act, 46 USCS Appx § 688, of 3 years. Muse v Freeman (1961, ED Va) 197 F Supp 67, 5 FR Serv 2d 1042.

In Fifth Circuit, in actions by seamen or vicarious seamen against vessel owners for unseaworthiness, analogous statute of reference to be used in determining laches is that of Jones Act, 46 USCS Appx § 688, and not local state statute of limitation. Daws v Movible Offshore, Inc. (1967, ED La) 264 F Supp 764.

In determining when unreasonable delay in seeking remedy exists, court will look for analogy to applicable statute of limitations after analogous statute of limitations has run. La Lande v Gulf Oil Corp. (1970, WD La) 317 F Supp 692.

Three year statute of limitations provided under 46 USCS Appx § 688 is persuasive that laches should not be bar in analogous admiralty proceeding where claim arose less than three years before intervention is sought. Re Industrial Transp. Corp. (1972, ED NY) 344 F Supp 1311.

In complaint brought under 46 USCS Appx § 688, 3 year limitation period has been employed as yardstick in determining what constitutes laches. Harris v Lykes Bros. S.S. Co. (1974, ED Tex) 375 F Supp 1155.

425. Prejudice

Test of laches is prejudice to other party, and prejudice cannot be inferred from variance between witnesses' testimony and respondent's written records concerning relevant events. Gutierrez v Waterman S.S. Corp. (1963) 373 US 206, 10 L Ed 2d 297, 83 S Ct 1185, reh den 374 US 858, 10 L Ed 2d 1082, 83 S Ct 1863.

Fact that libelant had present at trial eye-witnesses to his accident and their testimony was available is relevant factor in deciding whether delay in instituting suit was prejudicial to defendant; however, it is not decisive in every instance but is matter of court's discretion. Marrero Morales v Bull S.S. Co. (1960, CA1 Puerto Rico) 279 F2d 299.

Prejudice is essential element of laches, accordingly, unless prejudice appears, dismissal on ground of laches is improper; however, presence of prejudice does not necessarily require dismissal as prejudice may be outweighed by strength of excuse for delay. Espino v Ocean Cargo Line, Ltd. (1967, CA9 Cal) 382 F2d 67.

District Court's decision not to dismiss suit for laches brought more than three years after injury was justified where there was absence of prejudice since proof of either absence of prejudice or excuse for delay will repel claim of laches. Watz v Zapata Off-Shore Co. (1970, CA5 Tex) 431 F2d 100, later app (CA5 Tex) 500 F2d 628.

Libellant did not lose rights by reason of delay in giving notice to owners of vessel since delay did not deprive owners of opportunity to present all aspects of their case. The Nicoline Maersk (1931, DC Mass) 53 F2d 103.

Stevedore's action against shipowner for damages for personal injuries sustained while he was on dock was barred by laches because of his unexplained failure to commence it within two-year period provided by Massachusetts statute, and because of his failure to produce any evidence tending to rebut presumption of prejudice to defendant from this delay. Judge v Johnston Warren Lines, Ltd. (1962, DC Mass) 205 F Supp 700, 1963 AMC 268.

In action to recover for injuries, under 46 USCS Appx § 688, question of whether laches bars action is within court's discretion; if statute of limitations has run, prejudice to defendant by reason of inexcusable delay is presumed in absence of showing to contrary, but if it has not run, converse is inferred. Phillips v Luckenbach S.S. Co. (1964, SD NY) 227 F Supp 195.

426. Excuse

Ignorance of one's legal rights does not excuse failure to institute suit; this principle is applicable not only to ignorance of substantive legal rights but also to ignorance of procedures of law by which more favorable doctrine of substantive law can be sought. Marrero Morales v Bull S.S. Co. (1960, CA1 Puerto Rico) 279 F2d 299.

Delay in instituting suit under 46 USCS Appx § 688, may be excused when occasioned by special circumstances beyond control of injured or ill seamen, and under special circumstances defendant may be estopped from asserting statute of limitations or laches as bar to prosecution of seamen action. Mroz v Dravo Corp. (1970, CA3 Pa) 429 F2d 1156.

Laches was not bar to action where libellant's delay was excusable and had not seriously prejudiced respondent. Mahnich v Southern S.S. Co. (1942, DC Pa) 45 F Supp 839, affd (CA3 Pa) 129 F2d 857, revd on other grounds 321 US 96, 88 L Ed 561, 64 S Ct 455 and reh den (CA3 Pa) 135 F2d 602.

Action under 46 USCS Appx § 688 and under general maritime law brought more than six years after accident occurred, could not be maintained where there was evidence of inexcusable delay on part of plaintiff. West v Marine Resources Com. (1970, ED Va) 330 F Supp 966.

Ignorance of one's legal rights does not excuse failure to institute suit under 46 USCS Appx § 688. Harris v Lykes Bros. S.S. Co. (1974, ED Tex) 375 F Supp 1155.

427. Burden of proof

In applying doctrine of laches courts of admiralty customarily follow rule that when libel discloses that statute has already run it becomes incumbent upon libelant to plead and prove facts negating laches or tolling statute. Wilson v Northwestern Marine Iron Works (1954, CA9 Or) 212 F2d 510.

In action brought under both 46 USCS Appx § 688 and upon unseaworthiness of vessel, laches will be presumed if plaintiff seaman fails for more than 3 years after accident to assert grounds for recovery unless he overcomes presumption of inexcusable delay and detriment to defendant; when plaintiff failed to plead or prove any facts excusing delay in showing lack of prejudice, in spite of assertion by defendant of laches, his claim will be dismissed as barred. Lipfird v Mississippi Valley Barge Line Co. (1962, CA3 Pa) 310 F2d 639.

Plaintiff has burden of persuasion both as to excuse for delay and as to lack of prejudice to defendant. Larios v Victory Carriers, Inc. (1963, CA2 NY) 316 F2d 63; La Lande v Gulf Oil Corp. (1970, WD La) 317 F Supp 692.

In complaint under 46 USCS Appx § 688, burden rested upon plaintiff to rebut presumption of prejudice, and in light of showing of hardship in locating witness, producing pertinent records, and overcoming affect of dimmed memories, plaintiff failed to sustain that burden. Riddick v Baltimore Steam Packet Co. (1967, CA4 Va) 374 F2d 870.

If action for personal injuries due to unseaworthiness is brought outside of analogous three year period under 46 USCS Appx § 688, plaintiff must plead and prove facts which excuse delay and show why defendant has not been prejudiced. Ward v Union Barge Line Corp. (1971, CA3 Pa) 443 F2d 565 (ovrld on other grounds Cox v Dravo Corp. (CA3 Pa) 517 F2d 620, cert den 423 US 1020, 46 L Ed 2d 392, 96 S Ct 457).

In suit first filed under Jones Act, 46 USCS Appx § 688, and subsequently transferred to Puerto Rico and changed to admiralty suit after expiration of applicable Puerto Rican statute of limitations, burden is cast upon libelants to show special circumstances excusing their delay. Flores v A. H. Bull S.S. Co. (1958, DC Puerto Rico) 167 F Supp 841.

Once statute of limitations of 46 USCS Appx § 688 has run, there arises presumption that defendant has been prejudiced by delay and burden shifts to plaintiff to show excusable basis for delay in absence of prejudice to defendant. Harris v Lykes Bros. S.S. Co. (1974, ED Tex) 375 F Supp 1155.

D. Collateral Estoppel and Res Judicata

428. Effect of Jones Act proceeding on other federal actions

Libel under Suits in Admiralty Act (46 USCS Appx § § 741 et seq.) for recovery of damages for injuries sustained by seaman was barred by summary judgment dismissing complaint in prior 46 USCS Appx § 688 action based on same cause of action, where former judgment had not been appealed from and both actions were based on substantially same allegations of negligence. Wahlgren v Standard Oil Co. (1944, DC NY) 58 F Supp 783, 1944 AMC 1390, affd (CA2 NY) 152 F2d 106, 1946 AMC 50.

Where United States took full charge of defense in action under 46 USCS Appx § 688 by seaman to recover for alleged negligence against general agent, judgment could be pleaded as res judicata in negligence suit brought against United States under 50 USCS § 1291. Benjamin v United States (1950, DC NY) 92 F Supp 489, 1950 AMC 786.

429. Prior proceeding under Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.)

Award under Longshore and Harbor Workers' Compensation Act (33 USCS § 901 et seq.) is bar to action under 46 USCS Appx § 688, because award could not have been made validly without determination that plaintiff was not member of crew. Hagens v United Fruit Co. (1943, CA2 NY) 135 F2d 842.

Determination in action brought under 33 USCS § § 901 et seq., does not estop plaintiff from bringing subsequent action under 46 USCS Appx § 688. Boatel, Inc. v Delamore (1967, CA5 La) 379 F2d 850.

Jones Act (46 USCS Appx § 688) suit of injured towboat worker must be dismissed summarily, where he suffered accidental amputation of left pinky finger, he was paid nearly $ 7,000 in compensation under Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.), and he initiated proceeding with Labor Department in which ALJ specifically ruled that worker was not Jones Act "seaman," because worker is collaterally estopped from relitigating issue of seaman status. Anders v Ormet Corp. (1994, MD La) 874 F Supp 738.

430. Relation between Jones Act and general maritime proceedings

Although remedies for negligence under 46 USCS Appx § 688, unseaworthiness, and maintenance and cure have different origins and may on occasion call for application of slightly different principles and procedures, they nevertheless, when based on one unitary set of circumstances, serve same purpose of indemnifying seaman for damages caused by injury, dependent in large part upon same evidence, and involved some identical elements of recovery; where such closely related claims are submitted to different triers of fact, questions of res judicata and collateral estoppel necessarily arise, particularly in connection with efforts to avoid duplication of damages. 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.

Claim under 46 USCS Appx § 688 for negligence and maritime claim for unseaworthiness provides seamen with two different grounds for relief for commission of same wrong; judgment on one claim bars second suit based on other claims. Troupe v Chicago, Duluth & Georgian Bay Transit Co. (1956, CA2 NY) 234 F2d 253.

431. --Prior Jones Act proceeding

Judgment under 46 USCS Appx § 688 for injuries includes all damages, including wages, future impairment, mental and physical pain, and hospital and medical expenses, and is res judicata of any future action under general maritime law. The Progress (1937, DC Wash) 21 F Supp 572, 1938 AMC 458.

If seaman brings action under 46 USCS Appx § 688 and it is decided against him, he may not follow up with second one under general law of maritime tort. Burkholder v United States (1944, DC Pa) 60 F Supp 700, 1945 AMC 759.

Fireman on barge who was injured while so employed and brought suit under 46 USCS Appx § 688 for damages for medical expenses, pain and suffering, loss of wages, maintenance at $ 2 per day, and loss of future earning power and obtained judgment which was paid, cannot thereafter institute second suit for maintenance for $ 2.50 day under general admiralty and maritime law. Ottinger v Walling (1939) 335 Pa 77, 5 A2d 801, 1939 AMC 807.

432. --Prior maritime proceeding

Recovery of maintenance and cure does not bar subsequent action under 46 USCS Appx § 688. Pacific S.S. Co. v Peterson (1928) 278 US 130, 73 L Ed 220, 49 S Ct 75.

Decree for wages, and maintenance and cure cannot be imposed against subsequent suit for damages. The Rolph (1924, CA9 Cal) 299 F 52, 1924 AMC 942, cert den 266 US 614, 69 L Ed 468, 45 S Ct 96.

Action under 46 USCS Appx § 688 by injured seaman based on allegations of negligence was barred by prior 46 USCS Appx § 688 action between same parties for same injuries based on 46 USCS Appx § 688 and for maintenance and cure which resulted in judgment for defendant at close of plaintiff's case. Berk v Mathiason Shipping Co. (1942, DC NY) 45 F Supp 851, 1942 AMC 752.

Complaint for damages under 46 USCS Appx § 688 was barred where plaintiff had filed prior proceeding in admiralty. Jonassen v Norwegian American Line, Inc. (1952, DC NY) 105 F Supp 510, 1952 AMC 1146.

Judgment rendered in state court in action for maintenance and cure after full trial on same set of facts raised in subsequent action under 46 USCS Appx § 688 acts as complete estoppel to seaman on § 688 claim where seaman failed to establish that he had sustained injury in course of employment or that injury was result of accident in maintenance and cure action. Musgrave v Bronx Towing Line, Inc. (1963, SD NY) 219 F Supp 918.

Prospective trial between parties with reference to liability under 46 USCS Appx § 688 would be subject to principles of res judicata and collateral estoppel when issues were litigated and decided in admiralty action under Limitation of Liabilities Act (46 USCS Appx § § 181 et seq.). Hugney v Consolidation Coal Co. (1971, WD Pa) 345 F Supp 1079, later proceeding (WD Pa) 59 FRD 258, 17 FR Serv 2d 1440.

Final judgment in maintenance and cure action has collateral estoppel effect on seaman's claims under 46 USCS Appx § 688 and admiralty doctrine of unseaworthiness where seaman failed to established that he suffered injury or that he became physically or mentally ill aboard owner's ship in maintenance and cure action; fact of injury is indispensable element to seamen's present claim based on § 688 and unseaworthiness. Siders v Ohio River Co. (1972, WD Pa) 351 F Supp 995.

433. Effect of prior Jones Act proceeding on State action

Plaintiff who brought 46 USCS Appx § 688 action in federal court on grounds of failure to provide safe place to work and unseaworthiness of vessel was barred from bringing subsequent state court action on grounds of negligent operation and control of vessel; 46 USCS Appx § 688 incorporates provisions of Federal Employers' Liability Act, and grounds of recovery urged in second action were available in first. Baltimore S.S. Co. v Phillips (1927) 274 US 316, 71 L Ed 1069, 47 S Ct 600.

Claim of inconsistency between unsuccessful suit under 46 USCS Appx § 688 and later action for compensation cannot be asserted in compensation suit as election preventing compensation award. Teichman v Loffland Bros. Co. (1961, CA5 Tex) 294 F2d 175, cert den 368 US 948, 7 L Ed 2d 343, 82 S Ct 388.

434. Effect of prior state action on Jones Act proceeding

In action under 46 USCS Appx § 688, state court judgment may bar subsequent action in federal court absent sufficient jurisdictional predicate upon which federal jurisdiction may be based to entertain equitable collateral attack upon state judgment. Huddleston v Ohio River Co. (1964, CA3 Pa) 328 F2d 789, cert den 379 US 861, 13 L Ed 2d 64, 85 S Ct 122.

Action pending in state court system, where seaman brought action and recovered under 46 USCS Appx § 688 and waived right to recover for cure at trial, with appeal being taken to state supreme court, will not invoke doctrine of res judicata for seaman's second suit in federal court under general admiralty and maritime law to recover maintenance. Rankin v Iron City Sand & Gravel Corp. (1947, DC Pa) 71 F Supp 26.

435. --Prior workers' compensation proceeding

Action under 46 USCS Appx § 688 was not barred by fact that seaman sought action from Industrial Board of State of New York when award for workmen's compensation was on appeal where no payments on account of it were made; there is no basis for invoking any doctrine of election of remedies and nothing has occurred in way of accord or satisfaction. 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.

Action under 46 USCS Appx § 688 was not foreclosed either by res judicata or collateral estoppel by determination of nonseaman status made by state Industrial Accident Board in workmen's compensation case, as employer was not party to action. Mike Hooks, Inc. v Pena (1963, CA5 Tex) 313 F2d 696.

Obtaining compensation under automatic workman-compensation act does not preclude plaintiff from pursuing 46 USCS Appx § 688 remedies. Harney v William M. Moore Bldg. Corp. (1966, CA2 NY) 359 F2d 649.

Decree of state court in sustaining Board's ruling that cause of injury and death is mere speculation and conjecture, is res judicata on vital issue in action under 46 USCS Appx § 688, as to whether injury and death were suffered in course of employment. Trupasso v McKie Lighter Co. (1948, DC Mass) 79 F Supp 641.

Seaman who signs state workmen's compensation agreement and receives payments thereunder, and executes final receipt, is not barred from recovery of his rights under 46 USCS Appx § 688. Schellenger v Zubik (1959, DC Pa) 170 F Supp 92.

Voluntary acceptance of compensation benefits from employer does not estop injured seaman from bringing action under 46 USCS Appx § 688, although he will not receive double payment because proper credit must be given for compensation payments made. Smith v Service Contractong, Inc. (1964, ED La) 236 F Supp 492.

Employer may not amend answer to reinsert defense that injured seaman granted award by state workers' compensation board waived his federal maritime and 46 USCS Appx § 688 claims, where employer offered no evidence that seaman affirmatively waived his claim while seaman has thoroughly documented that, at every step of process, he expressly was not waiving his federal claims, because, in Second Circuit, receipt of workers' compensation award is not waiver of federal remedies unless there is unqualified acceptance of compensation over period of years. Turner v Niagara Frontier Transp. Authority (1990, WD NY) 748 F Supp 80.

Since issues essential to jurisdiction under 46 USCS Appx § 688 were not determined in state compensation proceedings which resulted in award to widow for death of her husband, widow was not collaterally estopped to recover under 46 USCS Appx § 688 and fact that widow received part of award did not preclude assertions of her rights under 46 USCS Appx § 688. De Court v Beckman Instruments, Inc. (1973, 4th Dist) 32 Cal App 3d 628, 108 Cal Rptr 109.

436. Particular circumstances

In first 46 USCS Appx § 688 action, injured seaman recovered for lost wages, past and prospective, and for medical and surgical attention and medicines; since all facts stipulated and stated by counsel in second cause of action were present before court in first action, second action was barred by judgment in first. Runyan v Great Lakes Dredge & Dock Co. (1944, CA6 Ohio) 141 F2d 396, 1944 AMC 614.

Suit by seaman against government, owner of ship, was barred where in prior suit against general agent there was verdict that general agent was not negligent, since liability of government was dependent upon finding of negligence by general agent. Adriaanse v United States (1950, CA2 NY) 184 F2d 968, cert den 340 US 932, 95 L Ed 673, 71 S Ct 495.

Suit for damages by widow of deceased was not barred by proceeding for compensation where widow filed motion to dismiss and refused to accept any benefits for compensation though motion to dismiss was overruled and judgment entered in her favor. Wilkes v Mississippi River Sand & Gravel Co. (1953, CA6 Tenn) 202 F2d 383, 1953 AMC 846, cert den 346 US 817, 98 L Ed 344, 74 S Ct 29.

Res judicata prevents seaman who was injured on defendant's ship and who subsequently sued hospital and doctors for malpractice in treating injury from recovering under Jones Act from defendant based solely upon hospital's negligence even if hospital were held to be agent of defendant under 45 USCS § 51, where seaman settled malpractice action. Soto v United States Lines, Inc. (1985, SD NY) 608 F Supp 904.

Plaintiff who had, in prior 46 USCS Appx § 688 action, recovered on theory that he was employee of corporate owner of vessel and that his injury was due to negligence of corporation, but who failed to establish negligence on part of captain, could not maintain second action against captain on ground of negligence, since that question was res judicata. Silva v Brown (1946) 319 Mass 466, 66 NE2d 349.

E. Limitation of Liability

437. Generally

46 USCS Appx § 688 has not repealed 46 USCS Appx § § 181 et seq. regarding limitation of liability of shipowners so far as claims or suits based on personal injuries to or death of seamen are concerned. Re Petition of East River Towing Co. (1924) 266 US 355, 69 L Ed 324, 45 S Ct 114.

Limited Liability Act (46 USCS Appx § § 181 et seq.) is not abrogated as to injured seamen by 46 USCS Appx § 688, even where there is only one claim. The Clarence P. Howland (1925, CA2 NY) 6 F2d 791, 1925 AMC 1076.

46 USCS Appx § 688 has not impliedly repealed 46 USCS Appx § § 183-185, limiting owner's liability. Re Eastern Transp. Co. (1929, DC Md) 37 F2d 355, mod on other grounds (CA4 Md) 51 F2d 494.

Petition to limit liability under 46 USCS Appx § § 183 et seq. will not be dismissed, but claimant also need not stipulate that security bond given in lieu of physical transfer of ship is sufficient to cover limitation fund, where claimant is proceeding with 46 USCS Appx § 688 claim in state-court jury trial, because sufficiency of stipulation-of-value question must be decided in federal court limitation proceeding after state court trial, and state court's findings will not be accorded res judicata on any issue. Luhr Bros., Inc. v Gagnard (1991, WD La) 765 F Supp 1264.

438. Defense to action under 46 USCS Appx § 688

If yacht owner was entitled to exoneration from death by drowning of two seamen under 46 USCS Appx § 688, issue as to limitation of liability under 46 USCS Appx § § 183-189 is of no consequence. 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.

Vessel owner is entitled to raise limitation of liability under 46 USCS Appx § § 181 et seq. in answer to employee's suit under 46 USCS Appx § 688 without being subject to 6 months limitation of § 185; and shipowner can claim limitation of liability either by petition or by answer. De Cruz v Hiering (1947, DC NJ) 69 F Supp 397.

Motion of shipowner to amend answer to raise defense of limitation of liability in action under 46 USCS Appx § 688 filed 11 years after original answer and 13 years after accident causing injury, and after appellate court had finally determined liability and ordered retrial on quantum of damages only will be denied as coming more than six months after notice of claim without showing of good cause for the delay. Yates v Dann (1958, DC Del) 167 F Supp 882, 1 FR Serv 2d 178.

Shipowner can raise defense of limitation of liability under 46 USCS Appx § § 181 et seq. in suit by seaman under 46 USCS Appx § 688; owner can do this even when it carries liability insurance on vessel in amount in excess of value of vessel. Pettus v Jones & Laughlin Steel Corp. (1971, WD Pa) 322 F Supp 1078.

439. Enjoining Jones Act proceeding

46 USCS Appx § 688 does not preclude injunction or stay to enable defendant to proceed under 46 USCS Appx § 185 for limitation of liability; although seaman's right to proceed at law before jury and shipowner's right to proceed under maritime law to limit liability are independent and in some respects concurrent, with respect to final decree limiting liability of shipowner, that law is paramount. Charles Nelson Co. v Curtis (1924, CA9 Cal) 1 F2d 774.

Action for personal injuries under 46 USCS Appx § 688 can be enjoined in limitation proceedings brought pursuant to 46 USCS Appx § § 181 et seq., notwithstanding resulting loss to seaman of trial by jury. Re Crosby Fisheries, Inc. (1928, DC Wash) 24 F2d 555.

Claim under 46 USCS Appx § 688 will be dismissed when filed after institution of limitation of liability proceeding under 46 USCS Appx § § 183 et seq. where court had entered order enjoining institution of any suits against vessels or owners; complainants will be permitted to reinstate their claims under 46 USCS Appx § 688, if court determines either that vessel owners may not limit liability under 46 USCS Appx § § 183 et seq., or that claims filed in limitation action do not exceed vessel owner's liability. Gregory v Mucho K, Inc. (1977, SD Fla) 438 F Supp 1117.

440. State court proceedings

Limitation of liability under 46 USCS Appx § § 181 et seq. can be pleaded by shipowner in action by injured seaman in state court under 46 USCS Appx § 688, and, although state court is not competent to decide right to limitation of liability if such right is questioned, value of vessel can be as appropriately determined in state court as in federal court in limitation proceedings, question to be determined in state court being whether shipowner was liable and, if so, value of vessel and her freight, which was limit of owner's liability. Langnes v Green (1931) 282 US 531, 75 L Ed 520, 51 S Ct 243.

Seaman was required to file in District Court, in which limitation of liability proceeding under 46 USCS Appx § § 181 et seq. was pending, statement that he waives any claim of res judicata relevant to issue of limited liability and based on any judgment which he might obtain in pending action in state court under 46 USCS Appx § 688. Great Lakes Dredge & Dock Co. v Lynch (1949, CA6 Ohio) 173 F2d 281.

Sole claimant in limitation proceeding brought under 46 USCS Appx § § 181 et seq., was required only to consent to reserve issue of vessel owner's right to limit liability to admiralty court in order to litigate his claim under 46 USCS Appx § 688 in state court jury action. Petition of Spearin, Preston & Burrows, Inc. (1951, CA2 NY) 190 F2d 684.

Fact that injured seaman had elected to bring common law action in state court did not affect jurisdiction of admiralty court in limitation proceedings where he thereafter presents merits of case. Pile Driver No. 2 (1931, DC NY) 1931 AMC 1791.

Seaman must file written consent to shipowner's right to limitation of liability under 46 USCS Appx § § 181 et seq. before he may make motion to permit prosecution in state court of his action for personal injuries under 46 USCS Appx § 688. The Kearny (1933, DC NY) 3 F Supp 718.

Seaman could prosecute action under 46 USCS Appx § 688 in state court upon filing in admiralty court waiver of claim to res judicata as to question of limitation. Re Trawler Gudrun, Inc. (1951, DC Mass) 101 F Supp 586.

F. Other Defenses

441. Common law defenses

Common law defenses to assault are available to employer in action under 46 USCS Appx § 688 for assault on plaintiff. Escandon v Pan American Foreign Corp. (1937, CA5 Tex) 88 F2d 276.

442. --Last clear chance

In action under 46 USCS Appx § 688 to recover for injuries sustained while employed as seaman on vessel, it was for jury to determine whether crew of ship involved in collision had last clear chance. Curtis Bay Towing Co. of Virginia, Inc. v Mansfield (1953, CA4 Va) 207 F2d 859.

443. Fraud

Defendant's contention that plaintiff committed "fraud" in failing to reveal prior injury and surgery, which vitiates his employment contract and destroys his claim under 46 USCS Appx § 688, was not available because dominant Congressional policy of compensating injured workers overrides alleged fraud in forming employment relationship. Compton v Luckenbach Overseas Corp. (1970, CA2 NY) 425 F2d 1130, 14 FR Serv 2d 165, cert den 400 US 916, 27 L Ed 2d 155, 91 S Ct 175.

444. Miscellaneous defenses

Jones Act seaman who is injured while performing seaman's work aboard ship owner's vessel, in which he is not crew member, cannot sue ship owner for unseaworthiness on same theory that longshoreman can sue nonemploying shipowner, but can sue for breach of duty. Smith v Harbor Towing & Fleeting, Inc. (1990, CA5 La) 910 F2d 312, reh den, en banc (CA5) 1990 US App LEXIS 18755.

Defense of independent contractor was not expressly abolished by 46 USCS Appx § 688, nor does language in § 688 impliedly have that effect as to incidental matters such as cleaning of oil tanks. Pietryzk v Dollar S.S. Lines, Ltd. (1939) 31 Cal App 2d 584, 88 P2d 783.

Even if defense of unavoidable accident is available in 46 USCS Appx § 688 cases predicated upon negligence, if evidence does not raise issue that something other than negligence of party to event caused injury, issue on unavoidable accident should not be submitted to jury. Continental Oil Co. v Lindley (1964, Tex Civ App Houston (1st Dist)) 382 SW2d 296, writ ref n r e.

Suit may not be brought against state or state universities in its own courts under 46 USCS Appx § 688 without its consent; waiver of immunity is matter for legislature to determine. Lyons v Texas A & M University (1976, Tex Civ App Houston (14th Dist)) 545 SW2d 56, writ ref n r e.

VI. DAMAGES

A. In General

445. Generally

In 46 USCS Appx § 688 actions, question of damages is for jury to decide. Garcia v Queen, Ltd. (1973, CA5 Fla) 487 F2d 625, 17 FR Serv 2d 1593.

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

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

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

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

446. Relation to damages under general maritime law

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

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

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

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

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

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

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

447. --Cumulative awards

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

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

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

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

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

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

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

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

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

448. Law governing

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

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

449. Collateral source rule

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

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

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

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

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