Jones Act Law Maritime Seaman Injury File Lawsuit Death Negligence Claim

600. Waiver of removal objections

Participation in every phase of District Court action without reservation or objection to removal of Jones Act action from state court does not constitute waiver since federal courts are without jurisdiction of such actions filed in state courts. Lirette v N.L. Sperry Sun, Inc. (1987, CA5 La) 810 F2d 533.

When Jones Act plaintiff who has selected state forum fails to object to removal of action to district court with subject matter jurisdiction and participates in conduct of action, district court may determine whether such actions amount to waiver of plaintiff's right to invoke 28 USCS § 1445(a). Lirette v N.L. Sperry Sun, Inc. (1987, CA5 La) 820 F2d 116.

"Jurisdiction" means "venue," and "principal office" means "head office" and action brought in United States district court in New York state should be dismissed after its removal from state court in New York; removal did not constitute general appearance waiver. Caceres v United States Shipping Board Emergency Fleet Corp. (1924, DC NY) 299 F 968; Atianza v United States Shipping Board Emergency Fleet Corp. (1924, DC NY) 299 F 975.

Fact that seaman's complaint for personal injuries included contractual wage claim did not act as waiver of plaintiffs' right to nonremoval. Goetz v Interlake S.S. Co. (1931, DC NY) 47 F2d 753; Beckwith v American President Lines, Ltd. (1946, DC Cal) 68 F Supp 353.

28 USCS § 1445 provides, indirectly, for nonremovability of 46 USCS Appx § 688 suits; failure of plaintiff to object to removal has no relevance. Moltke v Intercontinental Shipping Corp. (1949, DC NY) 86 F Supp 662.

601. Motion to remand

Mere allegation in motion to remand that cause is predicated on 46 USCS Appx § 688 is not enough to require district court to remand case to state court where action was originally brought. Preston v Grant Advertising, Inc. (1967, CA5 Fla) 375 F2d 439.

Subject matter jurisdiction of maintenance and cure claim is determined at time removal petition is filed, not at time of remand to state court. Addison v Gulf Coast Contracting Services, Inc. (1984, CA5 Miss) 744 F2d 494.

Where issues upon which removability of action under 46 USCS Appx § 688 appear from record to rest upon undisputed facts and documents, such issues may be resolved as matter of law; at least court can, on motion to remand, inquire far enough into factual issue to ascertain whether requisites of cause of action under 46 USCS Appx § 688 are present or whether, jurisdictionally, plaintiff is bound by 46 USCS Appx § 741 or other laws. Steele v American South African Line (1945, DC Cal) 62 F Supp 636.

Administratrix of estate of deceased deckhand commenced 46 USCS Appx § 688 action in state court for damages for wrongful death alleged to have resulted from negligence of defendant while deceased was employed on tug; when action was removed to federal court on ground of diversity of citizenship, plaintiff's motion to remand to state court was sustained since federal court was without jurisdiction. Rodich v American Barge Lines, Inc. (1947, DC Mo) 71 F Supp 549.

46 USCS Appx § 688 action removed improvidently and without jurisdiction will be remanded to state court. Moltke v Intercontinental Shipping Corp. (1949, DC NY) 86 F Supp 662.

Where plaintiff has filed state court action for injuries sustained in course of employment and has asserted cause of action under Jones Act (46 USCS Appx § 688), federal court determining motion to remand filed after defendant has removed case to federal court examines plaintiff's pleadings as they stood at time removal petition was filed; in absence of any issue of fraudulent attempt to evade removal, court determining whether cause of action under Jones Act has been alleged is limited to review of plaintiff's pleadings. Hollis v Halter Marine, Inc. (1984, ED La) 595 F Supp 827.

H. Discovery

602. Generally

In action by foreign seaman under 46 USCS Appx § 688 for personal injuries, wages, maintenance and repatriation, request of defendant foreign shipowner that jurisdiction be declined subjectes defendant, defendant's agents and those to whom it entrusted allegedly foreign vessel to obligation of furnishing on request all pertinent information for decision on motion to decline jurisdiction, where seaman claimed vessel was actually operated, owned and controlled by American interests. Lekkas v Liberian M/V Caledonia (1971, CA4 Va) 443 F2d 10.

603. Interrogatories

District Court's dismissal of action brought by Honduran seaman under 46 USCS Appx § 688 for lack of jurisdiction was improper where court relied exclusively upon defendant's affidavits and where defendant's answers to interrogatories directed at requisite jurisdictional factors were outstanding and overdue. Blanco v Carigulf Lines (1980, CA5 Ala) 632 F2d 656.

Defendant in action under 46 USCS Appx § 688 was entitled to more definite interrogatories which questioned types of signals used between pilot house and engineroom; response that signals were "usual" is insufficiently specific and inadequate. Carstens v Great Lakes Towing Co. (1945, DC Ohio) 71 F Supp 394.

Objection of libellant under 46 USCS Appx § 688 to interrogatories concerning his criminal record, which were served on him by respondent, owner of vessel, was sustained, there being no relevancy between subject matter of these interrogatories and probable issues in case. Platt v Chesapeake & O. R. Co. (1948, DC Ohio) 82 F Supp 968.

Plaintiff is entitled to answers to interrogatory requesting name, capacity, and address of each officer and crew member who served aboard defendants' vessel for voyage during which plaintiff sustained his alleged injuries. Vermilyea v Chesapeake & O. R. Co. (1951, DC Mich) 11 FRD 255.

Interrogatories are to be treated as part of pleadings, but may not be considered as evidence in admiralty or civil cases unless presented as such. Muse v Freeman (1961, ED Va) 197 F Supp 67, 5 FR Serv 2d 1042.

604. Depositions

In motion by seaman for examination before trial of officer of defendant and for production of various documents, statements by fellow employees made after accident in regard to accident are not "material to any matter involved in the action." Kenealy v Texas Co. (1939, DC NY) 29 F Supp 502, 1940 AMC 296.

In action under 46 USCS Appx § 688 to recover for damages, plaintiff was ordered to submit to examination in state of injury, which was also where oral examination was to occur, rather than his home state which was several hundred miles away. Warren v Weber & Heidenthaler, Inc. (1955, DC Mass) 134 F Supp 524.

Plaintiff suing under 46 USCS Appx § 688 cannot be required to pay expenses of defendant's attorney in going to Louisiana to be present at the taking of depositions, as 28 USCS § 1916 prohibits requiring seamen to prepay fees, and question of whether plaintiff is seaman is one issue for trial. Walsh v Marine Navigation Co. (1963, SD NY) 34 FRD 25, 8 FR Serv 2d 30b.41, Case 1, 1964 AMC 560.

605. Inspection of vessel

Court may order discovery and inspection of vessel on which injury occurred but allowance of such motion must be hedged by such conditions and limitations as will prevent any detention of defendant's vessel and consequent damage to defendant. Gimenes v New York & P. R. S.S. Co. (1929, DC NY) 37 F2d 168.

Plaintiff is permitted to board defendant's vessel to make discovery and inspection, with right to take photographs and make measurements. Vermilyea v Chesapeake & O. R. Co. (1951, DC Mich) 11 FRD 255.

606. Documents and records

In action under 46 USCS Appx § 688, determinative pretrial inquiry where plaintiff seeks to require production of hull insurance policy and report pertaining to payment received thereunder, was not whether possibility of trial prejudice from requiring production of document exists, but whether production will aid in discovery of truth by revealing admissible evidence and where record reveals no other more likely and authoritative source of information, denial of such discovery will constitute abuse of discretion of trial court. Roth v Bird (1956, CA5 Fla) 239 F2d 257.

Voluntary, routine pre-accident safety reviews are not protected by privilege of self-critical analysis and must be made available for discovery. Dowling v American Hawaii Cruises, Inc. (1992, CA9 Hawaii) 971 F2d 423, 92 CDOS 6772, 92 Daily Journal DAR 10817.

In action brought under 46 USCS Appx § 688 to recover damages for injuries, defendant may obtain production of records that would indicate whether or not benefits had been paid to plaintiff in amounts and duration thereof. Vazquez v A. H. Bull S.S. Co. (1950, DC NY) 91 F Supp 518.

Plaintiff was permitted to view secret surveillance films made by defendant of plaintiff and his injury, after plaintiff had deposed as to his injuries and disabilities. Snead v American Export-Isbrandtsen Lines, Inc. (1973, ED Pa) 59 FRD 148, 17 FR Serv 2d 13.

Discovery of minutes of monthly safety committee consisting of representatives of defendant vessel on which plaintiff was injured, used to identify potential safety problems aboard ship, would have chilling effect on critical self-analysis conducted by committee, and will be denied where committee has already provided relevant excerpts from minutes. Dowling v American Hawaii Cruises, Inc. (1990, DC Hawaii) 133 FRD 150, 1991 AMC 51, motion den (DC Hawaii) 1991 AMC 58.

607. --Plaintiff's discovery of own statements

Plaintiff is not entitled to reports and statements made by him to officers or crew of vessel. Corbett v Columbia Transp. Co. (1946, DC NY) 5 FRD 217.

Libelant's motion for libelee's production of copy of libelant's signed statement will not be granted in absence of showing of good cause. Prelli v Shepard S.S. Co. (1947, DC NY) 75 F Supp 220.

608. --Log entries and medical reports

Plaintiff has right to inspect and make copies of entries in log book, rather than rely on representations made by defendant as to what log book does or does not contain; order that defendant furnish plaintiff with any reports made in regular course of business with reference to plaintiff's injuries means information furnished by officers of vessel to owners in form of report. Murphy v New York & P. R. S.S. Co. (1939, DC NY) 27 F Supp 878.

In action under 46 USCS Appx § 688 to recover for injuries sustained on vessel, plaintiff is unquestionably entitled to log records of any relevant issue; plaintiff was also entitled to statements of defendant's employees making reports relevant to accident and submitted in usual course of business following accident; plaintiff was not entitled to reports and statements made by plaintiff to officers or crew of vessel. Corbett v Columbia Transp. Co. (1946, DC NY) 5 FRD 217.

Medical logs and other books papers and records pertaining to diagnosis care and medical treatment of deceased seaman during voyage, and production of rough deck log of vessel covering voyage, is within items which plaintiff should have for trial. Mulligan v Eastern S.S. Lines, Inc. (1946, DC NY) 6 FRD 601.

In action under 46 USCS Appx § 688, plaintiff is entitled to production for inspection, copying or photographing, of reports, logs, books, records, and papers pertaining to treatment of injuries of plaintiff. Vermilyea v Chesapeake & O. R. Co. (1951, DC Mich) 11 FRD 255.

609. Disclosing names of witnesses

Defendant's witnesses were not permitted to testify when defendant, although knowing at time of filing pretrial statement that certain evidence might be needed for defense or impeachment matters, did not disclose names of witnesses or inform court of possibility of impeachment evidence until time of trial. Ralph v Harry Zubik Co. (1963, WD Pa) 214 F Supp 145, 7 FR Serv 2d 307, affd (CA3 Pa) 319 F2d 531, cert den 375 US 931, 11 L Ed 2d 263, 84 S Ct 332.

I. Jury

1. Right To Jury Trial

610. Generally

Right of action given seamen by 46 USCS Appx § 688 is maritime and remedy at law for maritime cause of action may be withdrawn without impairment of constitutional right to jury trial in common-law cases. Sevin v Inland Waterways Corp. (1937, CA5 La) 88 F2d 988, 1937 AMC 814.

Seaman, in action under 46 USCS Appx § 688, has right to jury trial of issues he raises as long as there are unresolved issues between parties. Guerrero v American-Hawaiian S.S. Co. (1955, CA9 Cal) 222 F2d 238.

46 USCS Appx § 688 proffers right to jury trial and courts must exercise great caution in denying such right to any litigant. Hampton v Magnolia Towing Co. (1964, CA5 Miss) 338 F2d 303.

Right to jury trial of seaman's personal injury claim is closely related to basis of jurisdiction asserted for that claim; seaman suing his employer under 46 USCS Appx § 688 is entitled to jury, as is seaman asserting maritime claim under diversity jurisdiction; joinder of § 688 claim with admiralty claim in no way compromises § 688 jury right for where nonjury admiralty tradition and plaintiff's jury right conflict, jury right must prevail. Re Complaint of Berkley Curtis Bay Co. (1983, SD NY) 569 F Supp 1491, 37 FR Serv 2d 906, affd without op (CA2 NY) 742 F2d 1431, cert den 466 US 928, 80 L Ed 2d 184, 104 S Ct 1711.

Where complaint in action under Jones Act (46 USCS Appx § 688) requested trial by jury and also referenced federal question jurisdiction under 28 USCS § 1331, claim was viewed as action at law with right to jury trial, rather than action in admiralty without jury. Duhon v Koch Exploration Co. (1986, WD La) 628 F Supp 925.

Seaman injured in course of employment may maintain action under 46 USCS Appx § 688 to recover damages based on liability stemming from negligence with right of trial by jury. Sanz v Isbrandtsen Co. (1949) 196 Misc 390, 88 NYS2d 486.

611. Demand by seaman

Respondent steamship company could not press claim for jury trial for benefit of decedent's widow, as under 46 USCS Appx § 688 libellant is one who has choice of forum and of jury trial, and no one else can change or remove action elsewhere. Civil v Waterman S.S. Corp. (1954, CA2 NY) 217 F2d 94, 1955 AMC 21.

46 USCS Appx § 688 merely affords injured seaman, not other parties, choice between suit in admiralty without jury or civil suit with jury. Texas Menhaden Co. v Palermo (1964, CA5 Tex) 329 F2d 579.

46 USCS Appx § 688 gives to complainant right to trial by jury. Mullen v Eastern Transp. Co. (1938, DC Pa) 25 F Supp 62, 1938 AMC 1251; Murray v American Export Lines, Inc. (1943, DC NY) 53 F Supp 861, 1943 AMC 1426.

Benefits of 46 USCS Appx § 688, including right to trial by jury, are available only to members of crew of vessel plying in navigable waters. Bedia v Ford Motor Co. (1973, DC NY) 58 FRD 423.

Jones Act (46 USCS Appx § 688) gives right to elect jury trial only to injured seaman; Jones Act case defendant does not have that option. Vassalos v Hellenic Lines, Ltd. (1979, ED Pa) 482 F Supp 906, 28 FR Serv 2d 829.

Where non-admiralty claims and admiralty claims are so interrelated as to require trial by single factfinder, and each rests on independent basis sufficient to support federal jurisdiction, constitutionally-protected right to jury trial of civil claims outweighs tradition of non-jury trials in admiralty; Jones Act claim provides alternate statutory basis. Rose v Dredge Enterprise (1988, ED NC) 120 FRD 39.

612. Demand by defendant

Demand for jury trial by seaman suing under 46 USCS Appx § 688 operates as demand for jury trial by defendants, and removal of issue of damages from jury after trial of liability to them deprived defendants of right to jury trial. Yates v Dann (1955, CA3 Del) 223 F2d 64.

In action under 46 USCS Appx § 688, District Court deprived the defendant of his right to trial by jury by giving retrospective application to plaintiff's amendments stating claims within court's admiralty jurisdiction under FRCP 9 where original complaint demanded jury trial under FRCP 38 and defendant did not relinquish or consent to non-jury trial under FRCP 39. Johnson v Penrod Drilling Co. (1972, CA5 Tex) 469 F2d 897, 16 FR Serv 2d 766, on reh (CA5 Tex) 510 F2d 234, cert den 423 US 839, 46 L Ed 2d 58, 96 S Ct 68, 96 S Ct 69 and (disapproved on other grounds Norfolk & W. R. Co. v Liepelt, 444 US 490, 62 L Ed 2d 689, 100 S Ct 755, 10 Fed Rules Evid Serv 130, reh den 445 US 972, 64 L Ed 2d 250, 100 S Ct 1667 and (not followed Yukon Equipment, Inc. v Gordon (Alaska) 660 P2d 428, CCH Prod Liab Rep P 9563) and (not followed Klawonn v Mitchell, 105 Ill 2d 450, 86 Ill Dec 478, 475 NE2d 857)) as stated in Flanigan v Burlington Northern, Inc. (CA8 Mo) 632 F2d 880, cert den 450 US 921, 67 L Ed 2d 349, 101 S Ct 1370 and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570) and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).

613. Waiver

Action may be brought under 46 USCS Appx § 688 to recover for death of seaman with right of trial by jury, but such right will be waived if not demanded. Nelson v Greene Line Steamers, Inc. (1958, CA6 Ky) 255 F2d 31, cert den 358 US 867, 3 L Ed 2d 100, 79 S Ct 100; Siders v Ohio River Co. (1972, CA3 Pa) 469 F2d 1093, 16 FR Serv 2d 893.

When case was submitted to jury on special interrogatories which were first tendered to counsel and to which no objection was made, each party waived its right to jury determination of particular facts by failing to demand their submission; court may supply any deficiency in findings. Clary v Ocean Drilling & Exploration Co. (1977, WD La) 429 F Supp 905, affd (CA5 La) 609 F2d 1120.

District Court would not permit Jones Act plaintiff to cure waiver of his right to trial by jury by bringing second, identical Jones Act suit, demanding jury trial therein, and then consolidating actions. Vassalos v Hellenic Lines, Ltd. (1979, ED Pa) 482 F Supp 906, 28 FR Serv 2d 829.

Plaintiff's designation of entire action as admiralty suit waives plaintiff's right to jury under Jones Act (46 USCS Appx § 688). Willis v Woodson Constr. Co. (1983, WD La) 593 F Supp 464.

Seaman is entitled to jury trial in suit arising from injury sustained while working on barge and his subsequent termination, even though complaint states that "this is admiralty or maritime case" which generally would not have jury, where federal-question jurisdiction arises from claims brought under Jones Act (46 USCS Appx § 688), which expressly provides right to jury trial, because presence of admiralty claim, combined with claims brought under court's diversity and federal-question jurisdiction, does not create election of admiralty for entire case so as to waive right to jury trial. Keene v Bouchard Transp. Co. (1998, SD Tex) 9 F Supp 2d 764.

614. Election

Election is required by 46 USCS Appx § 688 only between trial by jury and suit in admiralty. Balado v Lykes Bros. S.S. Co. (1950, CA2 NY) 179 F2d 943.

46 USCS Appx § 688 requires that there be election made between trial by jury and suit in admiralty, and it means that plaintiffs suing under its provisions cannot in same action have issue of defendant's liability tried at law with jury and issue of damages resulting from identical liability tried by court in admiralty action without jury. Yates v Dann (1955, CA3 Del) 223 F2d 64.

Election contemplated by 46 USCS Appx § 688 is decision as to form of trial, whether jury or nonjury. McAffoos v Canadian Pacific S.S. Ltd. (1957, CA2 NY) 243 F2d 270, cert den 355 US 823, 2 L Ed 2d 39, 78 S Ct 32.

46 USCS Appx § 688 merely affords injured seaman, not other parties, choice between suit in admiralty without jury civil suit with jury. Texas Menhaden Co. v Palermo (1964, CA5 Tex) 329 F2d 579.

New substantive rights of 46 USCS Appx § 688 may be asserted and enforced in actions in personam against employers in federal or state courts administering common-law remedies, with right of trial by jury, or in suits in admiralty in courts administering maritime remedies, without trial by jury. Frame v New York (1940, DC NY) 34 F Supp 194, 1940 AMC 935.

Election provided for by 46 USCS Appx § 688 is not election between maritime claim of unseaworthiness and claim based upon negligence under 46 USCS Appx § 688 since both may be asserted in same action whether in admiralty or at law; election specified by 46 USCS Appx § 688 is between trial by jury and suit in admiralty. Murphy v American Barge Line Co. (1950, DC Pa) 93 F Supp 653.

Under 46 USCS Appx § 688, an election may be made between suit in admiralty without jury and civil action with jury, each asserting claim based on negligence. Johnson v Venezuelan Line S.S. Co. (1970, ED La) 314 F Supp 1403.

615. Effect of joinder of actions

While actions for unseaworthiness and for maintenance and cure do not ordinarily require trial by jury, negligence aspect of seaman's claim under 46 USCS Appx § 688 invokes right of jury trial, and since all aspects of claim should be submitted to one trier of fact, and 46 USCS Appx § 688 requires trial by jury of negligence aspect of case, seaman had right to submission of entire claim to jury. 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.

Maritime wrongful death remedy against shipowner based on unseaworthiness is admiralty action, ordinarily tried by court and not jury; where admiralty action is joined with civil claim, such as claim based on 46 USCS Appx § 688 or state survival statute, jury trial may be requested. Sea-Land Services, Inc. v Gaudet (1974) 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).

Sailor may combine action under maritime law together with action under 46 USCS Appx § 688 and may demand jury trial on issues formed therein. Williams v Tide Water Associated Oil Co. (1955, CA9 Wash) 227 F2d 791, cert den 350 US 960, 100 L Ed 834, 76 S Ct 348.

Seaman entitled to jury trial on negligence claim under 46 USCS Appx § 688 may try both negligence and unseaworthiness claims to jury simultaneously. Troupe v Chicago, Duluth & Georgian Bay Transit Co. (1956, CA2 NY) 234 F2d 253.

Jones Act (46 USCS Appx § 688) merely affords injured seaman choice between suit in admiralty without jury and suit on civil side of docket with jury and seaman may seek remedy for unseaworthiness and under § 688 in admiralty or in civil action but where seaman seeks recovery in admiralty there is no jury trial. Texas Menhaden Co. v Palermo (1964, CA5 Tex) 329 F2d 579.

Seaman who brought action under 46 USCS Appx § 688 was entitled to have both that claim and unseaworthiness claim tried before jury. Harney v William M. Moore Bldg. Corp. (1966, CA2 NY) 359 F2d 649.

Action may go to jury on both negligence claim under 46 USCS Appx § 688 and under unseaworthiness claim under 46 USCS Appx § 761. Peace v Fidalgo Island Packing Co. (1969, CA9 Wash) 419 F2d 371, 13 FR Serv 2d 1053.

Jury trial was allowable to seaman against citizen of same state not only on his count under 46 USCS Appx § 688, but also on his unseaworthiness count, and on his count claiming less than $ 3,000 for maintenance and cure. Jenkins v Roderick (1957, DC Mass) 156 F Supp 299, 1957 AMC 2325.

Where general maritime claims arise out of same transaction or incidents as Jones Act (46 USCS Appx § 688) claim, both may be tried to jury even though there is no diversity. Mattes v National Hellenic American Line, S. A. (1977, SD NY) 427 F Supp 619.

Injured seaman may join his Jones Act (46 USCS Appx § 688) and maritime claims before jury, even though he positively asserted Rule 9(h) admiralty jurisdiction and proceeded in rem, where principles of judicial economy and fairness would be served, because Jones Act guarantees seaman jury trial if timely elected, and there is no prohibition against jury trial for admiralty claims. Zrncevich v Blue Hawaii Enterprises, Inc. (1990, DC Hawaii) 738 F Supp 350.

Claimant who asserted claims in limitation of liability proceeding for unseaworthiness and maintenance and cure, as well as claim under 46 USCS Appx § 688, was entitled to jury trial in state court on issue of damages if court found in her favor on issues of exoneration from and limitation of liability. In re Complaint of Hill (1996, ED NC) 935 F Supp 710.

616. --Joinder of parties

In action for personal injury against 2 defendants under Jones Act (46 USCS Appx § 688), where jury trial is guaranteed as to one defendant, but only bench trial is required as to other, action will be tried before jury on all issues, and verdict will be only advisory as to defendant against whom plaintiff has only right to bench trial. Diodato v Turecamo Coastal & Harbor Towing, Inc. (1984, SD NY) 100 FRD 756, 38 FR Serv 2d 1146.

617. --Pendent claims

District court, on its civil side, in case in which plaintiff seaman was entitled as of right to jury trial of his claim under 46 USCS Appx § 688 for negligence, had pendent jurisdiction of his maritime claim for unseaworthiness arising out of same occurrence or transaction, and both claims were properly submitted to jury for common-law adjudication. Bartholomew v Universe Tankships, Inc. (1959, CA2 NY) 263 F2d 437, 1 FR Serv 2d 621, 1959 AMC 273, cert den 359 US 1000, 3 L Ed 2d 1030, 79 S Ct 1138 and (disagreed with 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 (disagreed with Chiazor v Transworld Drilling Co. (CA5 La) 648 F2d 1015, reh den (CA5 La) 659 F2d 1075 and cert den 455 US 1019, 72 L Ed 2d 136, 102 S Ct 1714) as stated in Vaz Borralho v Keydril Co. (CA5 Tex) 696 F2d 379, reh den (CA5 Tex) 710 F2d 207 and (disagreed with Tallentire v Offshore Logistics, Inc. (CA5 La) 754 F2d 1274, revd on other grounds (US) 91 L Ed 2d 174, 106 S Ct 2485).

Where pendent claim is cognizable in court of admiralty under general maritime law, it may well be that parties do not have constitutional right to jury trial of issues raised on law side merely because pendent claim is joined with claim under 46 USCS Appx § 688; policies and advantages which dictate consolidation of two types of claims in one trial would seem also to dictate that separate functions of factfinding not be allocated to jury and to judge; simply economy of effort and efficient administration of justice prove propriety of submitting whole case to jury and entering judgment on all counts in accordance with jury's verdict. Mitchell v Trawler Racer, Inc. (1959, CA1 Mass) 265 F2d 426, revd on other grounds 362 US 539, 4 L Ed 2d 941, 80 S Ct 926 (superseded by statute as stated in Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).

Plaintiff who files complaint at law under 46 USCS Appx § 688 and demands jury trial has right to join with it and have tried before jury as pendent to it his claims under maritime law for unseaworthiness and for maintenance and cure. Haskins v Point Towing Co. (1968, CA3 Pa) 395 F2d 737, 12 FR Serv 2d 918, later app (CA3 Pa) 421 F2d 532, cert den 400 US 834, 27 L Ed 2d 66, 91 S Ct 68.

In admiralty action, venue provision of 46 USCS Appx § 688 does not apply, and there is no right to jury trial; negligence claim under 46 USCS Appx § 688 cannot be treated as pendent to admiralty claims, so as to transubstantiate all claims into matters triable by jury; plaintiff must decide whether he wants jury trial or claim under 46 USCS Appx § 688 in proper jurisdiction, or court trial of admiralty action. Crookham v Muick (1965, WD Pa) 246 F Supp 288, 1966 AMC 1522.

618. --Counterclaims

Counterclaim by shipowner for recovery of maintenance and cure alleged to have been fraudulently obtained by seaman in action by seaman for personal injuries under 46 USCS Appx § 688 is subject to trial by jury notwithstanding general principle that admiralty claims (maintenance and cure) are not triable by jury. Bergeria v Marine Carriers, Inc. (1972, ED Pa) 341 F Supp 1153, 16 FR Serv 2d 1268.

619. Composition of jury

Parties can have no valid objection to 6-man jury in seaman's case. Wiseman v Reposa (1972, CA1 RI) 463 F2d 226.

620. Miscellaneous

Where District Court in which limitation of liability proceedings under 46 USCS Appx § 183 are filed issues order restraining prosecution of pending actions against defendants arising from particular accident, plaintiffs should, upon court's denial of limitation, be permitted to elect whether to remain in limitation proceeding or to revive original claims in their original fora; where plaintiffs, who had previously filed Jones Act claims in different district and had exercised their rights to jury trial, elected to renew original claims, and where court in which Jones Act claims were filed transfered cases to District Court in which limitation proceedings were filed on grounds of forum non conveniens, change of venue did not disentitle plaintiffs to right to jury. Wheeler v Marine Navigation Sulphur Carriers, Inc. (1985, CA4 Va) 764 F2d 1008.

Against corporate defendant, decedent's employer, plaintiff widow was entitled to have jury trial under provisions of 46 USCS Appx § 688, but to get jury trial against individual defendants whose negligent construction of lampstand allegedly caused injuries resulting in decedent's death, she would have to show either Act of Congress or cause of action recognized at common law and arising between parties of diverse state citizenship. McDonald v Cape Cod Trawling Corp. (1947, DC Mass) 71 F Supp 888.

2. Submission of Issues

621. Generally

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

Proper course for trial judge in cases under 46 USCS Appx § 688 is to submit issues of fact to jury and rule later on issues of law in event that it becomes necessary to do so. Bernardo v Bethlehem Steel Co. (1963, CA2 NY) 314 F2d 604, 1963 AMC 574.

Due to policy of providing expansive remedy for seamen, submission of claim under 46 USCS Appx § 688 to jury requires very low evidentiary threshold; even marginal claims are properly left for jury determination. Leonard v Exxon Corp. (1978, CA5 La) 581 F2d 522, reh den (CA5 La) 586 F2d 842 and cert den 441 US 923, 60 L Ed 2d 397, 99 S Ct 2032.

Trial court properly submitted issues on seaworthiness of vessel to jury. Jussila v M/T Louisiana Brimstone (1982, CA5 La) 691 F2d 217.

Submission to jury under 46 USCS Appx § 688 is simply whether or not proofs justify with reasonable conclusion that employer negligence played any part, even slightest, in producing injury or death for which damages are sought. Carlton v M/G Transport Services, Inc. (1983, CA6 Ky) 698 F2d 846.

Fact finding does not require mathematical certainty, and to preserve plaintiff's constitutional right to trial by jury, any evidentiary basis for making of finding on issue of negligence under 46 USCS Appx § 688 should be submitted to jury. Diddlebock v Alcoa S. S. Co. (1964, ED Pa) 237 F Supp 538, 1966 AMC 444.

Judge does not share role with jury as trier of fact of claims arising from negligence under Jones Act (46 USCS Appx § 688) and from unseaworthiness under general maritime law. Parisi v Lady in Blue, Inc. (1977, DC Mass) 433 F Supp 681.

622. Removal of issues from jury

District Court did not err in withdrawing from jury count containing charges of unseaworthiness, as court in absence of diversity of citizenship had jurisdiction of issue of unseaworthiness only on admiralty side; plaintiff, having by counsel acquiesced in submission of unseaworthiness count to court on record, could not thereafter object because of adverse finding. Jesonis v Oliver J. Olson & Co. (1956, CA9 Cal) 238 F2d 307, 1956 AMC 1509.

Issue, in 46 USCS Appx § 688 cases, of whether plaintiff's employer is vessel owner or another, is to be taken from jury so as to avoid possibility of jury speculation whenever it appears that only one reasonable conclusion can be reached on evidence, even if district court is not "officially" sitting in admiralty; advisability of such procedure exists where issue primarily involves construction of written documents such as charter party and agency agreement. Fitzgerald v A. L. Burbank & Co. (1971, CA2 NY) 451 F2d 670, 14 ALR Fed 525.

623. Particular issues submitted

Fact that plaintiff is contributorily negligent is not complete defense, and, if possibility exists that any negligence at all by employer contributed to accident, case should go to jury. Lafont v Otto Candies, Inc. (1966, CA5 La) 369 F2d 38, 1967 AMC 2728.

Testimony of injured seaman alone, if believed, would establish that conditions were not normal and that excess mud was on drilling floor and lights, which is enough to require case to go to jury because as such there is no complete absence of probative facts supporting his position. Lambert v Diamond M Drilling Co. (1982, CA5 La) 683 F2d 935, reh den (CA5 La) 688 F2d 1023.

624. --Seaman's status

Question whether plaintiff was permanently assigned to barge should have gone to jury. Bennett v Perini Corp. (1975, CA1 Mass) 510 F2d 114 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)).

Trial court instruction is sufficient where although court focuses jury's attention on question of whether defendant remained seaman at time of his injury, court emphatically told jury that this was strictly question for them. Savoie v Otto Candies, Inc. (1982, CA5 La) 692 F2d 363, 12 Fed Rules Evid Serv 269.

Though question of seaman status is ordinarily issue for jury, before issue may go to jury, injured worker must present evidence that he or she was assigned permanently to vessel or performed substantial part of work on vessel, and that duties performed contributed to function of vessel, accomplishment of its mission, or operation or welfare of vessel in terms of its maintenance during its movement or during anchorage for its future trips. Balfer v Mayronne Mud & Chemical Co. (1985, CA5 La) 762 F2d 432.

Though question of seaman status is ordinarily issue for jury, before issue may go to jury, injured worker must present evidence that he or she was assigned permanently to vessel or performed substantial part of work on vessel, and that duties performed contributed to function of vessel, accomplishment of its mission, or to operation or welfare of vessel in terms of its maintenance during its movement or during anchorage for its future trips. Balfer v Mayronne Mud & Chemical Co. (1985, CA5 La) 762 F2d 432.

Whether worker meets criteria for crew-member status is ordinarily jury question. Munguia v Chevron Co., U.S.A. (1985, CA5 La) 768 F2d 649, reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 580, 106 S Ct 1272.

Question of whether longshoreman was ship repairer for purpose of assigning liability to barge owner rather than to plaintiff's employer is one for jury where jury could have concluded that plaintiff's activity at time of injury in pumping out barge was not repairwork. Gay v Barge 266 (1990, CA5 La) 915 F2d 1007.

Claim made by plaintiff under Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) for compensation benefits did not deprive plaintiff of right to jury determination of his seaman's status under 46 USCS Appx § 688. Oliver v Ocean Drilling & Exploration Co. (1963, WD La) 222 F Supp 843, 1964 AMC 374.

625. --Negligence

Issues of negligence and unseaworthiness in personal injury suits brought under 46 USCS Appx § 688 are factual issues for jury. Crador v Boh Bros., Inc. (1973, CA5 La) 473 F2d 1040.

In action to recover for injuries sustained while employed as seaman, it was for jury to determine whether actions of vessel owner were those of reasonably prudent person under circumstances. Garcia v Murphy Pacific Marine Salvaging Co. (1973, CA5 La) 476 F2d 303.

Considering evidence of pool of oily water around tank on which plaintiff was working to skim oil sludge, extremely warm temperature in room, and fact that plaintiff both notified superior of these conditions and expressly asked for help, jury could reasonably have found that officer's direction to plaintiff to continue work without assistance constituted discrete act of operative negligence, and such finding was thus not inconsistent with finding that vessel was seaworthy. Calo v Ocean Ships (1995, CA2 NY) 57 F3d 159.

Even though issue of negligence may be close, court should not usurp function of jury. Diddlebock v Alcoa S.S. Co. (1964, ED Pa) 237 F Supp 538.

626. ----Defect in or use of appliances

Negligence with respect to door which closed on seaman's fingers was to be determined by jury. Howarth v United States Shipping Board Emergency Fleet Corp. (1928, CA2 NY) 24 F2d 374, 1928 AMC 397.

It is vessel's duty to provide safe working place for members of its crew and where evidence shows that it failed to do so and proof of circumstances from which it can reasonably be inferred that injury resulted from such failure, case is for jury. Sadler v Pennsylvania R. Co. (1947, CA4 Va) 159 F2d 784, 1947 AMC 636.

It is not negligence per se anytime hatch is left uncovered on board and ship does not provide protective devices where period for which hatch is uncovered is only short time and where oral warning was given to prove regarding possible hazard. Loehr v Offshore Logistics, Inc. (1982, CA5 La) 691 F2d 758.

Evidence of employer's negligence was sufficient to go to jury where seaman's claim was based on exposure to asbestos and there was testimony that relationship between asbestos exposure and lung disease was known in early 1920's and that inspectors aboard ferries in 1960's used masks and respirators; such testimony supported inference that harmful consequences of asbestos exposure were foreseeable during time when machinist worked aboard employer's car ferries. Petersen v Chesapeake & O. R. Co. (1986, CA6 Mich) 784 F2d 732.

It was for jury to determine whether mechanical device which caused injury to seaman was stopped as quickly as it might have been under different method. Anelich v The Arizona (1935) 183 Wash 467, 49 P2d 3, affd 298 US 110, 80 L Ed 1075, 56 S Ct 707, reh den 298 US 692, 80 L Ed 1409, 56 S Ct 945.

627. ----Foreseeability

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

628. ----Causation

In action under 46 USCS Appx § 688, jury decides whether doctor's negligence was proximate cause of injury, and they may do so both in absence of direct medical testimony on point, and, in certain circumstances, even counter to only medical testimony on causation, but jury is not permitted to speculate on proximate cause in absence of reasonably persuasive proof that negligence was probable cause of injury. Fitzgerald v A. L. Burbank & Co. (1971, CA2 NY) 451 F2d 670, 14 ALR Fed 525.

Cause of break in apparatus was question for jury. McGinn v North Coast Stevedoring Co. (1928) 149 Wash 1, 270 P 113.

629. --Fellow servant's negligence

In action to recover damages under 46 USCS Appx § 688 it was for jury to determine whether consequences of act of fellow seaman were reasonably foreseeable. Panama Agencies Co. v Franco (1940, CA5 Canal Zone) 111 F2d 263.

It was for jury to determine whether actions of fellow seaman contributed to injuries suffered by plaintiff seaman. Wong Bar v Suburban Petroleum Transport, Inc. (1941, CA2 NY) 119 F2d 745.

It was for jury to determine whether fellow seaman acted negligently in causing injuries to plaintiff who brought action under 46 USCS Appx § 688. Sundberg v Washington Fish & Oyster Co. (1943, CA9 Wash) 138 F2d 801; Ranstrom v International Stevedoring Co. (1929) 152 Wash 332, 277 P 992.

Determination as to health of fellow seaman who shared plaintiff's cabin and possibility of plaintiff's having contracted communicable disease from him, were questions for jury determination. Gonzales v United Fruit Co. (1951, CA2 NY) 193 F2d 479.

In action to recover damages under 46 USCS Appx § 688 for injuries suffered by seaman, it was question for jury whether shipowners were negligent in that fellow seaman failed to inspect and clean tank before plaintiff seaman was directed to use its contents, which resulted in painful skin blisters after coming in contact with contaminated substance. Rodgers v Boland (1950, DC Pa) 92 F Supp 507.

In action brought under 46 USCS Appx § 688 to recover for death of seaman, it was question for jury to determine whether actions of master and crew were negligent and led to death of seaman. Stahlin v Lehigh V. R. Co. (1940) 125 NJL 211, 15 A2d 344.

630. --Injury

It was for jury to determine whether injury had aggravated existent arthritic condition. Foster v Moore-McCormack Lines, Inc. (1942, CA2 NY) 131 F2d 907, cert den 318 US 762, 87 L Ed 1134, 63 S Ct 560.

It was for jury to determine whether seaman developed disease on vessel in action under, inter alia, 46 USCS Appx § 688. Wounick v Hysmith (1970, CA3 Pa) 423 F2d 873.

Complainant whose complaint stated claim under 46 USCS Appx § 688 is entitled to jury trial on question whether condition was aggravated by "anxiety and stress." Picou v American Offshore Fleet, Inc. (1978, CA5 La) 576 F2d 585.

631. --Seaman's contributory or comparative negligence

It is for jury to determine whether injured seaman had knowledge or notice of dangerous condition. Socony-Vacuum Oil Co. v Smith (1939) 305 US 424, 83 L Ed 265, 59 S Ct 262.

Contributory negligence of injured laborer was for determination of jury. American Sugar Refining Co. v Nassif (1930, CA1 Mass) 45 F2d 321, 1931 AMC 586.

Contributory negligence is jury question in action by seaman for injuries received from defect in wharf. Bailey v Texas Co. (1931, CA2 NY) 47 F2d 153, 1931 AMC 771.

It was for jury to determine whether injured seaman knowingly concealed prior existing physical disability. Rosenquist v Isthmian S.S. Co. (1953, CA2 NY) 205 F2d 486.

In action to recover damages for injuries suffered by seaman, there may be sufficient evidence that plaintiff was not contributorily negligent, such that those findings could be made as matter of law. June T., Inc. v King (1961, CA5 Fla) 290 F2d 404, 4 FR Serv 2d 796.

Issue of contributory negligence does not arise in suit under 46 USCS Appx § 688 unless jury finds defendant negligent. Nolan v Greene (1967, CA6 Ky) 383 F2d 814; Curry v United States (1971, ND Cal) 327 F Supp 155, supp op (ND Cal) 338 F Supp 1219.

Bosun who brought action for damages for personal injuries under 46 USCS § 688 was entitled to have jury rather than judge decide whether fault for accident was entirely that of bosun, either because wooden pellets used as temporary steps for moving heavy equipment could have been used safely, or because bosen was obligated, once he discovered unsafe condition, to notify Chief Mate. Diebold v Moore McCormack Bulk Transport Lines, Inc. (1986, CA2 NY) 805 F2d 55.

It was for jury to determine whether owner and employee both were negligent, and to apportion negligence. Williamson v Roen S.S. Co. (1957, DC Wis) 149 F Supp 787, 1957 AMC 1344.

632. --Damages

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

633. Special interrogatories

If jury gives inconsistent answers to special interrogatories, case must be remanded for new trial; answers should be considered inconsistent only if there is no way to reconcile them. Willard v The John Hayward (1978, CA5 La) 577 F2d 1009.

Omission of explicit definition of liability under Jones Act [46 USCS Appx § 688] from special interrogatory does not constitute reversible error where jury is charged correctly on law. Ardoin v J. Ray McDermott & Co. (1982, CA5 La) 684 F2d 335, 11 Fed Rules Evid Serv 843.

Jury in case involving claim of unseaworthiness negligence under Jones Act (46 USCS Appx § 688) must be instructed on 2 distinct theories; construct of special interrogatories should reflect independent characteristics of both causes of action and single interrogatory concerning amount of damages may be submitted where all of claimed damages stem from single event. Comeaux v T.L. James & Co. (1983, CA FC) 702 F2d 1023.

634. Instructions

Instruction was improper in Jones Act action where it precluded jury, in determining whether plaintiff-engineer had performed substantial part of his work on vessel on which he had sailed from U.S. to Germany and back, from considering 6-month period during which vessel was in drydock for refurbishment in Germany on ground that vessel was out of navigation during such period. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.

Where seaman's case, in addition to claim under 46 USCS Appx § 688, was submitted to jury on theory of unseaworthiness under instructions which were incorrect, general verdict for plaintiff cannot be sustained. Russell v City Ice & Fuel Co. (1976, CA4 W Va) 539 F2d 1318.

Failure of trial judge in charge to jury in action under 46 USCS Appx § 688 to indicate that seaworthiness does not necessarily require accident-free vessel or one with best possible equipment along with charging jury vessel must be "reasonably fit" to be seaworthy is error requiring remand of award of damages for injury. Morton v Berman Enterprises, Inc. (1982, CA2 NY) 669 F2d 89.

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 shipowner to prove that ship could not have been cause of accident when vessel is operated in violation of statute), notwithstanding assertion 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.

Where negligence and unseaworthiness are tied together, judge must instruct on both; therefore, judge must give requested instruction on employer's duty to provide safe place to work as part of negligence charge, notwithstanding that similar instruction was given as part of seaworthiness charge. Yehia v Rouge Steel Corp. (1990, CA6 Mich) 898 F2d 1178, reh den (CA6) 1990 US App LEXIS 7841.

Trial judge's instruction, that seaman could not be found contributorily negligent if he was following orders of superiors even if he knew activity to be dangerous, where defendant contended that seaman was given general order to cast-off and not specific order to stand on bulwark, was disputed issue of fact. Earl v Bouchard Transp. Co. (1990, CA2 NY) 917 F2d 1320.

District court erred in refusing ship owner's requested jury instruction that stated "plaintiff will not be required to pay either state or federal income taxes on any judgment which may be awarded as result of this suit." Allred v Maersk Line, Ltd. (1994, CA4 Va) 35 F3d 139.

Where record showed no evidence on subject of medical or hospital treatment, and court instructed on elements of damages in plaintiff's suit under 46 USCS Appx § 688 without mentioning expenditures for medical and hospital treatment, refusal of defendant's requested instruction that there could be no recovery for medical and hospital treatment because plaintiff did not mention subject in his pleadings, was not error. Jennings v American President Lines, Ltd. (1943) 61 Cal App 2d 417, 143 P2d 349, reh den 61 Cal App 2d 430, 144 P2d 54.

Failure of trial court to instruct jury as to failure of shipowner to contact Coast Guard in rendering adequate medical assistance did not constitute reversible error since such instruction served no purpose but to buttress arguments to jury as to what constituted duty of reasonable care, which trial court had already covered in its general instruction. Barracliff v Maritime Overseas Corp. (1960) 55 Wash 2d 695, 349 P2d 1080.

635. --Preserving or failing to preserve error

In personal injury action, where there was neither testimony nor charge as to actuarial basis jury should employ in determining damages and information jury had before it differed markedly from information required, situation was one of those uncommon occasions when unpreserved trial court error would result in grave injustice if allowed to stand and controversy was remanded solely for redetermination of damages. Crador v Boh Bros., Inc. (1973, CA5 La) 473 F2d 1040.

In action by injured seaman under 46 USCS Appx § 688, defendant properly preserved for review objection to jury charge on basis that no evidence was presented as to amount of attorney fees, where defendant objected to charge at trial and renewed such objection at subsequent hearing. Holmes v J. Ray McDermott & Co. (1984, CA5 La) 734 F2d 1110, 15 Fed Rules Evid Serv 1682.

In action to recover for death of seaman who drowned while attempting to rescue fellow employee, failure to give proper rescue charge constitutes plain error requiring reversal, notwithstanding failure to object. 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.

636. --Separate theories

It was not error on part of trial court to refuse to instruct jury on issue of theories of unseaworthiness, where finding by jury that there was no negligence effectively disposed of unseaworthiness contention. Campbell v Seacoast Products, Inc. (1978, CA5 La) 581 F2d 98.

When plaintiff seaman alleges both negligence and unseaworthiness, it is duty of trial court to instruct on each theory systematically and separately, making distinction clear. Gentry v States S.S. Co. (1961) 229 Or 233, 366 P2d 880.

J. Evidence

1. In General

637. Generally

During trial of action brought under 46 USCS Appx § 688, judge has duty to see that facts are presented clearly and he may ask pertinent questions of witnesses to that end, but he should exercise self-restraint and preserve atmosphere of impartiality and detachment. Pariser v New York (1945, CA2 NY) 146 F2d 431.

Evidentiary standard in Jones Act (46 USCS Appx § 688) and Federal Employers' Liability Act (45 USCS § § 51 et seq.) is same. Barboza v Texaco, Inc. (1970, CA1 Mass) 434 F2d 121.

Plaintiff's uncorroborated testimony concerning employer's negligence in maintaining unseaworthy vessel is sufficient evidence of liability where testimony is uncontroverted by defendant; district court could properly infer that employer was or should have been aware of danger. Havens v F/T Polar Mist, U.S.C.G. (1993, CA9 Wash) 996 F2d 215, 93 CDOS 4519, 93 Daily Journal DAR 7719.

Degree of proof required for recovery under Jones Act (46 USCS Appx § 688) is greater than under action for unseaworthiness, inasmuch as seaman is required to prove negligence to recover under Jones Act, whereas seaman can recover regardless of fault, or lack of it, on unseaworthiness charge. Reed v The Arkansas (1950, DC Cal) 88 F Supp 993.

638. Circumstantial evidence

Under 46 USCS Appx § 688 eye witness to circumstances of death is not essential to award. 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)).

Circumstantial nature of evidence in unwitnessed accident case does not negate finding for plaintiff in case under 46 USCS Appx § 688. Hebert v Otto Candies, Inc. (1975, ED La) 402 F Supp 503.

639. Presumptions and inferences

In cases under 46 USCS Appx § 688, there must be some evidence from which jury can infer that unsafe condition for which plaintiff sues existed and that owner knew or, in exercise of due care, should have known of it. Perry v Morgan Guaranty Trust Co. (1976, CA5 La) 528 F2d 1378.

Summary judgment is warranted, despite "featherweight" burden of proving causation in Jones Act case and permissible inferences from unexplained events, where seaman was last seen walking away from defendant ship across bow of barge. Re Cooper/T. Smith (1991, CA5 La) 929 F2d 1073.

Approval by Coast Guard authority is persuasive, but not conclusive, on question of sufficiency of equipment. Tatem v Southern Transp. Co. (1947, DC Pa) 72 F Supp 44, affd (CA3 Pa) 166 F2d 1020.

In action under 46 USCS Appx § 688, it is presumption that plaintiff was engaged in performance of his duties and was exercising due care for his own safety at time of his injury. Willis v American Barge Line Co. (1949, DC Pa) 87 F Supp 919.

Absolute duty of shipowner to furnish seaworthy ship is completely independent of any duty under 46 USCS Appx § 688 to exercise reasonable care, and breach of latter duty can aggravate, or lead to, breach of former; in view of this and fact that furnishing ship which is unseaworthy raises rebuttable presumption of causation when ship is lost at sea, similar presumption must also arise with regard to negligence. Re Marine Sulphur Transport Corp. (1970, SD NY) 312 F Supp 1081, affd in part and revd in part on other grounds (CA2 NY) 460 F2d 89, cert den 409 US 982, 34 L Ed 2d 246, 93 S Ct 318, 93 S Ct 326.

640. --Causation

In determining proximate cause in action based on 46 USCS Appx § 688, jury is entitled to make permissible inferences from unexplained events. Alaska S.S. Co. v Petterson (1954) 347 US 396, 98 L Ed 798, 74 S Ct 601, reh den 347 US 994, 98 L Ed 1127, 74 S Ct 848.

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

Test to be applied in determining permissible inferences from unexplained events in cases arising under 46 USCS Appx § 688 is whether proofs justify with reasoned conclusion that employer's negligence played any part, however slight, in producing injury or death for which damages are sought; in cases under 46 USCS Appx § 688, trier of fact is allowed measure of speculation and conjecture to settle dispute by choosing most reasonable inference and only when there is complete absence of probative facts to support conclusion reached does reversible error appear. Sweeney v American S.S. Co. (1974, CA6 Ohio) 491 F2d 1085.

Evidence that movant had prior history of back trouble before events of accident in question and that he suffered fall causing him injuries after accident in question are sufficient to support inference by jury that events of accident in question were not cause of movant's back trouble. Ardoin v J. Ray McDermott & Co. (1982, CA5 La) 684 F2d 335, 11 Fed Rules Evid Serv 843.

Court will not second guess jury as fact finder were jury found causal nexus on basis of "some" probative evidence, "however small," between plaintiff's disease and defendant's negligence in permitting his exposure to hydrocarbons on defendant's boats. Davis v Odeco, Inc. (1994, CA5 La) 18 F3d 1237, reh, en banc, den (CA5 La) 1994 US App LEXIS 11831 and cert den 513 US 819, 130 L Ed 2d 32, 115 S Ct 78 .

641. --Dependency or pecuniary harm

In action under 46 USCS Appx § 688 to recover damages for death of seaman, dependency of widow and minor children is presumed. Cleveland Tankers, Inc. v Tierney (1948, CA6 Ohio) 169 F2d 622, 1049 AMC 151.

Minor children of deceased are presumed to have suffered injury by his death irrespective of his contribution during life, but they must show reasonable anticipation of pecuniary benefit if death had not occurred. Re Uravic's Estate (1932) 142 Misc 775, 255 NYS 638.

642. Res ipsa loquitur doctrine

Doctrine of res ipsa loquitur is applied in cases under 46 USCS Appx § 688. Johnson v United States (1948) 333 US 46, 92 L Ed 468, 68 S Ct 391.

Doctrine of res ipsa loquitur is inapplicable where at time of accident vessel was not in exclusive control of owners. Cruse v Sabine Transp. Co. (1937, CA5 Tex) 88 F2d 298, 1937 AMC 739, cert den 302 US 701, 82 L Ed 541, 58 S Ct 20, reh den 302 US 775, 82 L Ed 600, 58 S Ct 134.

Doctrine of res ipsa loquitur is not proof and does not supply want of proof; there is no basis for application of doctrine when thing that caused injury is under exclusive control and management of injured party. Asprodites v Standard Fruit & S.S. Co. (1940, CA5 La) 108 F2d 728, cert den 310 US 642, 84 L Ed 1410, 60 S Ct 1089.

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

46 USCS Appx § 688 libelant, under allegation of negligence, has doctrine of res ipsa loquitur in his favor. Lind v American Trading & Production Co. (1961, CA9 Wash) 294 F2d 342, 1961 AMC 2467.

Resort to res ipsa loquitur is not warranted in absence of showing at least malfunction, failure or misuse of vessel, its appurtenances or gear, or some defect therein. Rabb v Canal Barge Co. (1970, CA5 Miss) 428 F2d 201.

Trial judge's refusal to instruct jury that under doctrine of res ipsa loquitur it could infer negligence on part of shipowner under Jones Act (46 USCS Appx § 688) was proper, where specific instrumentality that caused seaman's disappearance from ship was unknown, and there was not evidence that condition of vessel's gear or appurtenances contributed to disappearance of seaman, and where there were many possible varying explanations of seaman's disappearance, including being swept overboard if he had gone up on deck in spite of captain's order to contrary, epileptic seizure, or suicide. Estate of Larkins v Farrell Lines, Inc. (1986, CA4 Md) 806 F2d 510.

Doctrine of res ipsa loquitur unquestionably has application in cause of action arising in admiralty, either under 46 USCS Appx § 688 or general maritime law. Higginbotham v Mobil Oil Corp. (1973, WD La) 357 F Supp 1164, supp op (DC La) 360 F Supp 1140, affd in part and revd in part on other grounds (CA5 La) 545 F2d 422 (disagreed with Smith v M/V Captain Fred (CA5 La) 546 F2d 119) as stated in Longmire v Sea Drilling Corp. (CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919 and (disagreed with Steckler v United States (CA10 Colo) 549 F2d 1372, 38 ALR Fed 188 (disagreed with Smith v United States (CA3 Pa) 587 F2d 1013)) and revd on other grounds 436 US 618, 56 L Ed 2d 581, 98 S Ct 2010, on remand (CA5 La) 578 F2d 565 and reh den 439 US 884, 58 L Ed 2d 200, 99 S Ct 232 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90) and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).

Where plaintiff pleads negligence both generally and specifically, doctrine of res ipsa loquitur may be relied upon. Radisich v Franco-Italian Packing Co. (1945) 68 Cal App 2d 825, 158 P2d 435.

643. --Explosions

In libel for damages for personal injuries caused by explosion which occurred while filling tanks with gasoline, doctrine of res ipsa loquitur does not apply merely because there was running engine. Callan v Cope (1948, CA9 Cal) 165 F2d 703.

Unexplained explosion or flash fire in inadequately ventilated sleeping quarters of crew of fishing boat justified inference that operators of vessel had failed to use due care to make sleeping quarters safe for occupancy of crew. Hill v Atlantic Navigation Co. (1955, CA4 Va) 218 F2d 654, 1955 AMC 542.

Res ipsa loquitur doctrine applied to explosion on boat, and injured seamen were entitled to recover. The Material Service (1934, DC Ill) 11 F Supp 1006, affd (CA7 Ill) 79 F2d 280, 1935 AMC 1453, cert den 296 US 653, 80 L Ed 465, 56 S Ct 370.

644. --Falling objects

Doctrine of res ipsa loquitur applies to action by seaman against United States for injuries resulting when seaman was struck on head by block, which fell in some unexplained manner. Johnson v United States (1948) 333 US 46, 92 L Ed 468, 68 S Ct 391, 1948 AMC 218.

Fall of turnbuckle barrel in loading operations warranted application of rule res ipsa loquitur. Fauntleroy v Argonaut S.S. Line, Inc. (1928, CA4 Md) 27 F2d 50, 1928 AMC 1193.

Res ipsa loquitur does not apply where seaman was injured by usual and expected swing of sling load and such accident as well may have been caused by his failure to avoid it as by negligence of injured man's fellow workmen. Seville v United States (1947, CA9 Cal) 163 F2d 296.

Breaking of overhead tackle does not warrant application of doctrine res ipsa loquitur and burden of proving negligence is on employee suing for injuries resulting from such breaking. The Mercier (1933, DC Or) 5 F Supp 511, 1934 AMC 291, affd (CA9 Or) 72 F2d 1008, 1935 AMC 225.

Fall of rigging causing injury to employee does not warrant application of rule of res ipsa loquitur where rigging is not under control of defendant. Massa v Nippon Yusen Kaisha (1934) 264 NY 283, 190 NE 641.

645. --Other particular applications

Existence of insecurely fastened hatch cover, without showing of negligence on part of employees of ship did not permit application of doctrine res ipsa loquitur. Carlson v United States (1934, CA5 La) 71 F2d 116, 1934 AMC 841.

In action under 46 USCS Appx § 688 for injuries sustained when plaintiff slipped on zucchini squash while descending stairway, once the jury believed plaintiff was not responsible, it could infer that defendant was negligent under doctrine of res ipsa loquitur. Barboza v Texaco, Inc. (1970, CA1 Mass) 434 F2d 121.

In action for damages for death of bridge tender resulting when vessel crashed into bridge while attempting to pass through span of bridge, facts were such as to make applicable doctrine of res ipsa loquitur. Quinn v Southgate Nelson Corp. (1941, DC NY) 36 F Supp 873, affd (CA2 NY) 121 F2d 190, 1941 AMC 1214, cert den 314 US 682, 86 L Ed 546, 62 S Ct 185.

Sudden reversal of anchor chain was proper basis for application of res ipsa loquitur doctrine. Lejeune v General Petroleum Corp. (1932, Cal App) 13 P2d 1057, 1932 AMC 1472, subsequent op on reh 128 Cal App 404, 18 P2d 429.

Allegation that while plaintiff's decedent was assisting in cleaning net on board defendant's fishing vessel his apron was caught and he was drawn into drum of ship's winch, throwing decedent against deck of vessel and inflicting injuries upon him which proximately caused his death did not preclude application of doctrine of res ipsa loquitur. Radisich v Franco-Italian Packing Co. (1945) 68 Cal App 2d 825, 158 P2d 435.

Seaman injured by falling through hatchway when steamship was fastened to dock, gives rise to presumption of negligence of vessel with respect to inspection, rules of res ipsa loquitur applying. 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).

Since shipowner had exclusive control of laying of temporary floor-boards on top of tiers of paper rolls in cargo hold and injury to seaman resulted from accident which ordinarily would not have happened had shipowner used due care, seaman's proof of prima facie case invokes res ipsa loquitur. Carlson v Wheeler-Hallock Co. (1943) 171 Or 349, 137 P2d 1001.

646. Judicial notice

Court will take judicial notice that defendant is doing business within jurisdiction. Summerall v United Fruit Co. (1935, DC NY) 11 F Supp 963, 1935 AMC 1202, affd (CA2 NY) 80 F2d 1020, 1936 AMC 199, cert den 298 US 658, 80 L Ed 1384, 56 S Ct 680.

Court takes judicial notice that chains are put around hatches only when hatches are open to prevent longshoremen or those loading or unloading cargo from slipping into hold. Gelb v United States (1948, DC Cal) 75 F Supp 833.

Health, education and welfare mortality table is document published by United States, and courts can take judicial notice of document in federal case involving admiralty and 46 USCS Appx § 688. Nice v Chesapeake & O. R. Co. (1969, WD Mich) 305 F Supp 1167.

Court takes judicial notice of standard mortality tables. Roalsen v Oregon Stevedoring Co. (1928) 147 Wash 672, 267 P 433.

647. View by jury

Defendant's request of trial court to allow jury to be brought onto vessel where defendant had not previously made such request was imposition of surprise on plaintiff which could not be allowed without continuance. Ralph v Harry Zubik Co. (1963, WD Pa) 214 F Supp 145, 7 FR Serv 2d 307, affd (CA3 Pa) 319 F2d 531, cert den 375 US 931, 11 L Ed 2d 263, 84 S Ct 332.

648. Credibility of witnesses

Since witness had every motive to deny having moved rods on engine of vessel without warning, after he had learned that his inattention had killed plaintiff's decedent, fireman on vessel, jury was not bound to accept testimony of such witness that he had not moved rods before he got "jingle" bell. Rivas v McAllister Lighterage Line, Inc. (1945, CA2 NY) 151 F2d 848, 1945 AMC 1509, cert den 326 US 787, 90 L Ed 478, 66 S Ct 480.

In action under 46 USCS Appx § 688 to recover for injuries sustained in assault by fellow seamen, it was for jury to determine credibility of witnesses. Pittsburgh S.S. Co. v Scott (1947, CA6 Ohio) 159 F2d 373.

It was for jury to determine weight to be accorded conflicting testimony of both expert and lay witnesses. Emaldio v Pocahontas S.S. Co. (1966, CA4 Va) 355 F2d 55.

In action for personal injuries brought pursuant to 46 USCS Appx § 688, plaintiff's income tax return and his failure to report certain earnings may be used in effort to discredit his veracity on witness stand. Stacey v Sea-Drilling Corp. (1970, CA5 La) 424 F2d 1272.

Where physician testified that prior work history would have no medical relationship to susceptibility of decedent to heart attack, it was error for court to withdraw from jury evidence of decedent's overtime, as jury was not bound by perimeter of expert testimony, but rather was entitled to substitute its own practical judgment for that of expert. Wilkins v American Export Isbrandtsen Lines, Inc. (1971, CA2 NY) 446 F2d 480, cert den 404 US 1018, 30 L Ed 2d 665, 92 S Ct 679, reh den 405 US 969, 31 L Ed 2d 244, 92 S Ct 1166 and cert den 404 US 1018, 30 L Ed 2d 665, 92 S Ct 680.

Ship's regular medical log maintained by ship's surgeon can be properly admitted for impeachment purposes in action under 46 USCS Appx § 688. Poulsen v Oceanic S.S. Co. (1961, 1st Dist) 197 Cal App 2d 69, 17 Cal Rptr 421.

649. Miscellaneous

Court did not abuse its discretion in allowing plaintiff to use rebuttal to introduce three depositions which could have been properly introduced by plaintiff when he was presenting his evidence in chief. Casey v Seas Shipping Co. (1949, CA2 NY) 178 F2d 360.

In suit by drilling rig welder for injuries sustained in lifting luggage into employer's van, there was sufficient evidence to support finding of employer's negligence where testimony was conflicting as to why van entry door was not open and as to weight of luggage. Cobb v Rowan Cos. (1991, CA5 La) 919 F2d 1089.

Extent to which attorney-client privilege is recognized in admiralty cases is not to be determined by state law. Redfern v American President Lines, Ltd. (1963, ND Cal) 228 F Supp 227, 8 FR Serv 2d 34.13, Case 4.