Jones Act Law Maritime Claim Ship Owner Employer Liability File Lawsuit Death Negligence Claim

2. Plaintiff's Burden of Proof

650. Generally

Libelant has burden of proof in action to recover damages under 46 USCS Appx § 688. Selby v United States (1959, CA2 NY) 264 F2d 632, cert den 361 US 815, 4 L Ed 2d 62, 80 S Ct 54.

Where seaman alleges 9-year history of negligent actions by employees of shipowner leading to his emotional stress, suit will be dismissed on ground that plaintiff has alleged no facts that would lead reasonable trier of fact to believe that there was foreseeable risk of emotional injury; shipowner has duty to provide safe workplace, not to keep plaintiff from rigors of job as seaman. Puthe v Exxon Shipping Co. (1993, CA2 NY) 2 F3d 480.

Seamen may maintain action against employer under Jones Act where employer's failure to exercise reasonable care causes subsequent injury, even where employer's negligence did not render ship unseaworthy; plaintiff's burden of causation under Act is "featherweight". Ferrara v A. & V. Fishing, Inc. (1996, CA1 Mass) 99 F3d 449.

Burden is on libellant to prove his injury was sustained by breach of duty owed him, and that such breach was proximate cause of his injury. Helmke v United States (1934, DC La) 8 F Supp 521, 1934 AMC 1592.

Under 46 USCS Appx § 688, plaintiff must bear burden of going forward with evidence on all essential elements of negligence action; he must prove existence of duty, negligent violation of this duty by defendant, and finally, causal relationship of violation to injury sustained. Diddlebock v Alcoa S. S. Co. (1964, ED Pa) 237 F Supp 538, 1966 AMC 444.

In order to be entitled to recovery for damages under 46 USCS Appx § 688, plaintiff must bear burden of establishing that he was seaman, that he was crew member of vessel involved, that defendant was owner pro hac vice of vessel at time of accident, that plaintiff was injured while in service of vessel, that plaintiff was employee of defendant and that negligence on part of defendant was proximate cause of plaintiff's injuries. Martinez v Star Fish & Oyster Co. (1974, SD Ala) 386 F Supp 560.

Burden of plaintiff under 46 USCS Appx § 688 is met when plaintiff adduces any proof from which jury may with reason make inference of employer's negligence, and it does not matter that jury may with reason find that other causes also contributed to result, including plaintiff's contributory negligence. Perion v United Fruit Co. (1961) 226 Md 591, 174 A2d 777.

651. Degree of proof

Burden of plaintiff to prove proximate cause in action based on 46 USCS Appx § 688 is very light. 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.

Burden on plaintiff to prove proximate cause in action based on 46 USCS Appx § 688 and general maritime law is very slight. Landry v Two R. Drilling Co. (1975, CA5 La) 511 F2d 138, 18 FR Serv 2d 1461, reh den (CA5 La) 517 F2d 675; Davis v Hill Engineering, Inc. (1977, CA5 Tex) 549 F2d 314, reh den (CA5 Tex) 554 F2d 1065 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).

In Jones Act case burden or plaintiff to prove causation is very light and jury is entitled to make permissible inferences from unexplained events but generally in cases submitted to jury there have been facts showing some negligence on part of employer and circumstances allowing reasonable inference that negligence caused injury or death and where court cannot draw reasonable inference that seizure caused decedent to fall overboard in absence of any recent prior history of seizures causing him to fall summary judgment granted by District Court would be affirmed. Martin v John W. Stone Oil Distributor, Inc. (1987, CA5 La) 819 F2d 547.

Jones Act employer is liable for injury to employee for even slightest negligence on its part, and seaman's burden of proving causation is "featherweight". Gautreaux v Scurlock Marine (1996, CA5 La) 84 F3d 776.

46 USCS Appx § 688 requires that libellant prove his case by preponderance of evidence. Landy v United States (1951, DC Pa) 101 F Supp 486, affd (CA3 Pa) 197 F2d 524.

Although seaman bears burden of proof on issue of negligence, burden is "featherweight." Yelverton v Mobile Laboratories, Inc. (1985, SD Miss) 608 F Supp 400, affd (CA5 Miss) 782 F2d 555.

652. Negligence

Sufficient evidence to sustain jury verdict only requires that there be facts from which jury might infer negligence; where there is sudden departure from well-established practice of safety and both practice and departure are clearly presented by evidence, it is not also incumbent upon claimant in action under 46 USCS Appx § 688 to exclude every other hypothesis except negligence. Sanford Bros. Boats, Inc. v Vidrine (1969, CA5 La) 412 F2d 958, 13 FR Serv 2d 1116.

Disparity between penalties for trafficking in powdered cocaine and cocaine base is not grossly disproportionate to severity of offenses considering that cocaine base concentrates and magnifies effect of one gram of cocaine to such degree that dealers profitably can sell it in very cheap-yet-potent quantities, and considering that impact of crack cocaine is devastating. United States v Fisher (1994, CA5 Tex) 22 F3d 574, reh den (CA5 Tex) 1994 US App LEXIS 19818.

Gist of action under 46 USCS Appx § 688 is negligence, and burden of establishing negligence rests upon plaintiff. Walton v Continental S.S. Co. (1946, DC Md) 66 F Supp 836; Gelb v United States (1948, DC Cal) 75 F Supp 833; Carlson v Wheeler-Hallock Co. (1943) 171 Or 349, 137 P2d 1001; Premeaux v Socony-Vacuum Oil Co. (1946) 144 Tex 558, 192 SW2d 138.

Where employee of geophysical company was killed in ship explosion while engaged in use of explosives with other employees, personal representative must prove negligence of company was responsible for explosion, since employee's negligence alone might have caused explosion. Pure Oil Co. v Geotechnical Corp. of Delaware (1951, DC La) 94 F Supp 866, 1951 AMC 553, affd (CA5 La) 196 F2d 199, 1952 AMC 727, cert den 344 US 879, 97 L Ed 681, 73 S Ct 175 and cert den 344 US 874, 97 L Ed 676, 73 S Ct 165.

Burden of proving unseaworthiness of vessel or negligence on part of shipowner is entirely upon libelant, and in addition, libelant must prove that unseaworthy condition was proximate cause of his injury, or that negligence of respondent caused in whole or in part injury complained of. Goodrich v Cargo Ships & Tankers, Inc. (1965, ED La) 241 F Supp 332, 1965 AMC 2749.

Failure of injured seaman to prove any negligence of shipowner, resulting in seaman's fall which caused his injuries, precluded recovery of damages from shipowner. Massey v Williams-McWilliams, Inc. (1967, ED La) 277 F Supp 452, affd in part and revd in part on other grounds (CA5 La) 414 F2d 675, cert den 396 US 1037, 24 L Ed 2d 681, 90 S Ct 682 and on remand (ED La) 317 F Supp 37.

Action for negligence under 46 USCS Appx § 688 is somewhat similar to common-law action for negligence, although recovery is more liberally allowed, seaman may recover for injuries inflicted by equipment which is defective due to negligence, or by negligent actions of fellow crewmen or officers, or other agents of employer. Puamier v Barge BT 1793 (1974, ED Va) 395 F Supp 1019, 17 UCCRS 745.

Seaman has right to recover damages from his employer if employer was guilty of some negligence and such negligence played any role, no matter how slight, in producing injury; although plaintiff bears burden of proof on such issue, burden is "featherweight." Yelverton v Mobile Laboratories, Inc. (1985, SD Miss) 608 F Supp 400, affd (CA5 Miss) 782 F2d 555.

Alleged seaman's Jones Act (46 USCS Appx § 688) claim may proceed, where seaman loading bait locker on fishing boat broke bone in his foot when it was struck by 25-pound box of frozen squid, because quantum of evidence need not be substantial to support finding of Jones Act negligence, and duty to provide seaworthy vessel includes providing adequate crew as whole and providing for individual tasks to be performed. Tran v Captain Glyn, Inc. (1995, DC Hawaii) 909 F Supp 727.

In suit under 46 USCS Appx § 688, seaman assumes burden of proving negligence. Curtis Bay Towing Co. v Dean (1938) 174 Md 498, 199 A 521, 1938 AMC 851, cert den 305 US 628, 83 L Ed 402, 59 S Ct 92.

653. Employer-employee relationship

Decedent's status as seaman for purposes of suit under 46 USCS Appx § 688 was conclusively determined when it was alleged in libel that at time of his death decedent was seaman on steamship and there was nothing anywhere in pleadings contradictory of this allegation and no amendment was asked or allowed. United States v Lindgren (1928, CA4 Va) 28 F2d 725, affd 281 US 38, 74 L Ed 686, 50 S Ct 207.

Seaman suing owner of vessel for injuries received on vessel as result of negligence of cook, while vessel was chartered to another had burden of proving by preponderance of evidence that both he and cook were in employment of owner and that he was injured as result of negligence of cook. Osland v Star Fish & Oyster Co. (1941, CA5 Ala) 118 F2d 772, 1941 AMC 792, cert den 314 US 615, 86 L Ed 495, 62 S Ct 86, reh den 314 US 716, 86 L Ed 570, 62 S Ct 477.

To recover under 46 USCS Appx § 688, plaintiff must prove himself employee of defendant and must also prove that his injury arose in course of that employment. Bergan v International Freighting Corp. (1958, CA2 NY) 254 F2d 231.

Primary prerequisite to any recovery under statutory scheme of compensation provided by 46 USCS Appx § 688 is establishment by seaman of employer-employee relationship with defendant. Haskins v Point Towing Co. (1970, CA3 Pa) 421 F2d 532, cert den 400 US 834, 27 L Ed 2d 66, 91 S Ct 68.

Jones Act (46 USCS Appx § 688) claim on behalf of deceased person is denied summarily, where defendant corporation has proven through affidavit evidence that it is not employer of seamen, even though representative produced unauthenticated document purporting to be Social Security earnings statement showing corporation's contribution in person's behalf, because necessary proof of person's employment as seaman is missing. Miller v American Foreign S.S. Corp. (1995, ED Tex) 902 F Supp 118.

Proof of employer-employee relationship is essential before plaintiff can prevail on count based on 46 USCS Appx § 688. Silva v Brown (1946) 319 Mass 466, 66 NE2d 349.

In suit under 46 USCS Appx § 688, plaintiff has burden of proving by competent evidence not only that he was injured as alleged, but that he was employee of defendant or that vessel on which he was injured was owned or operated by defendant. Lykes Bros.-Ripley S. S. Co. v Pluto (1940, Tex Civ App) 146 SW2d 414, writ dismd.

654. --Evidence of payments under 33 USCS § § 901 et seq.

In action brought under 46 USCS Appx § 688, in which principal issue was whether, in view of nature of work, plaintiff at time of injury was seaman or offshore drilling employee, trial court committed prejudicial error when it permitted introduction of evidence that plaintiff had accepted benefits under 33 USCS § § 901 et seq. Tipton v Socony Mobil Oil Co. (1963) 375 US 34, 11 L Ed 2d 4, 84 S Ct 1, 1963 AMC 2276, reh den 375 US 936, 11 L Ed 2d 268, 84 S Ct 328.

In damage action brought under Jones Act (46 USCS Appx § 688) trial court did not err in excluding evidence that plaintiff had previously applied for benefits under LHWCA (33 USCS § § 901 et seq.) notwithstanding that evidence was offered as admission against interest on question whether plaintiff was seaman. Essary v Louisiana Dock Co. (1978, 5th Dist) 66 Ill App 3d 182, 22 Ill Dec 923, 383 NE2d 731.

655. Causation

Burden on plaintiff to prove proximate cause in action based on 46 USCS Appx § 688 is very light; jury in such cases is entitled to make permissible inferences from unexplained events, whether case is brought under 46 USCS Appx § 688 or under general maritime law. Alaska S.S. Co. v Petterson (1954) 347 US 396, 98 L Ed 798, 74 S Ct 601, reh den 347 US 994, 98 L Ed 1127, 74 S Ct 848.

In action under 46 USCS Appx § 688, burden is on plaintiff to establish by preponderance of evidence that negligence of defendant caused or was substantial factor in causing plaintiff's illness. Rey v Colonial Nav. Co. (1941, CA2 NY) 116 F2d 580.

In meeting burden of proving negligence on part of ship owner, libelant must prove not only that equipment or absence of which he complains, was required as part of ship owner's duty of care toward him, but that accident which resulted in his injury was caused proximately by its absence. Repsholdt v United States (1953, CA7 Ill) 205 F2d 852, cert den 346 US 901, 98 L Ed 401, 74 S Ct 226, reh den 346 US 928, 98 L Ed 420, 74 S Ct 308.

To recover under 46 USCS Appx § 688, plaintiff must show that negligent act or omission of defendant caused, in whole or in part, injury or death for which plaintiff sues. Miller v Farrell Lines, Inc. (1957, CA2 NY) 247 F2d 503, cert den 355 US 912, 2 L Ed 2d 273, 78 S Ct 342; 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; Fitzgerald v A. L. Burbank & Co. (1971, CA2 NY) 451 F2d 670, 14 ALR Fed 525; Colombo v Texas Co. (1956, DC NY) 140 F Supp 496; Goodrich v Cargo Ships & Tankers, Inc. (1965, ED La) 241 F Supp 332; Spearing v Manhattan Oil Transp. Corp. (1974, SD NY) 375 F Supp 764, 19 FR Serv 2d 33.

Mere fact that injury to seaman claimant occurred on ship does not, in itself, establish unseaworthiness and neither does proof of fact of unseaworthiness, ipso facto, provide proof of causation; when vessel disappears in expectable weather under otherwise unknown circumstances, proof by claimants of some element of unseaworthiness will permit trier of fact to infer that unseaworthiness was proximate cause of loss. Re Marine Sulphur Queen (1972, CA2 NY) 460 F2d 89, cert den 409 US 982, 34 L Ed 2d 246, 93 S Ct 318, 93 S Ct 326.

In case under 46 USCS Appx § 688 there is no liability without some proof of fault and claimant must show facts from which jury can reasonably infer that either employer or co-workers were negligent. Traupman v American Dredging Co. (1972, CA2 NY) 470 F2d 736.

In order to prevail plaintiff must show that either unseaworthiness of vessel or negligence of shipowner proximately caused his injury. Shephard v S/S Nopal Progress (1974, CA5 La) 497 F2d 963, reh den (CA5 La) 502 F2d 1167, and reh den (CA5 La) 502 F2d 1168 and cert den 420 US 937, 43 L Ed 2d 414, 95 S Ct 1147.

Even though Jones Act (46 USCS Appx § 688) plaintiff has only minimal or featherweight burden to satisfy before his case may be taken to jury, he must still in some way show causal connection between injury and some omission or commission by shipowner or condition which renders ship unseaworthy. Caldwell v Manhattan Tankers Corp. (1980, CA5 La) 618 F2d 361.

Plaintiff has duty to connect origin of disease for which he sues under 46 USCS Appx § 688 with his employer. Diddlebock v Alcoa S.S. Co. (1964, ED Pa) 237 F Supp 538.

656. --Particular circumstances

Although vessel owner and docking company may have permitted some unsafe conditions to exist in and about dock, jury could not reasonably infer that such conditions played any part, even slightest, in death of seaman whose drowned body was discovered some distance from dock where there was no evidence at all of causation nor were circumstances sufficient to warrant inference of causation and there was no concession by defendants ruling out other causes of death. Quam v Mobil Oil Corp. (1979, CA2 NY) 599 F2d 42, cert den 444 US 950, 62 L Ed 2d 321, 100 S Ct 423.

In action by seaman to recover damages for injury to eye on ground that ship was negligent in not furnishing him with goggles while chipping rust, libellant had burden of proving that present existing cataract was caused by particles of rust. Haddock v North Atlantic & Gulf S.S. Co. (1948, DC Md) 81 F Supp 421.

Ship's pilot injured in fall from accommodation ladder during egress from ship is awarded $ 15,155 for loss of earnings, $ 875 for medical expenses, and $ 7,600 for pain and suffering and loss of life's enjoyment, and prejudgment interest in amount of 8 percent per annum from September 10, 1989 fall to present under 46 USCS Appx § 688, where shipowner's negligence caused pilot to fall and hit launch, fracturing his nose and triggering severe aggravation of pre-existing motor neuron disease, because no doctor has been able to provide definitive diagnosis of pilot's neurological condition, which has completely debilitated him, so that award for aggravation of disease is just too speculative and damages are limited to those resulting from nose fracture. Evans v United Arab Shipping Co. (1992, DC NJ) 790 F Supp 516.

657. Pecuniary loss

In action for death when beneficiaries are parents of adult child, pecuniary loss must be alleged and proved. Cleveland Tankers, Inc. v Tierney (1948, CA6 Ohio) 169 F2d 622, 1949 AMC 151.

Burden of proof is upon parents to prove amount of pecuniary loss as result of death of adult son. Petition of United States (1950, DC NY) 92 F Supp 495, 1951 AMC 112.

658. Pain and suffering

There must be substantial evidence in action brought under 46 USCS Appx § 688 to recover for pain and suffering to show that decedent was conscious before his death, so as to be able to experience pain and suffering between wrongful injury and death. Davis v Parkhill-Goodloe Co. (1962, CA5 Fla) 302 F2d 489, 5 FR Serv 2d 853 (disagreed with Deal v A.P. Bell Fish Co. (CA5 La) 728 F2d 717).

Recovery for conscious pain and suffering experienced by decedent prior to death is recoverable under 46 USCS Appx § 688; in cases involving drowning, courts generally have required evidence of struggle or other post-accident consciousness on part of decedent before awarding damages for his pain and suffering prior to death; no recovery for conscious pain and suffering will be allowed absent substantial evidence of proof that decedent was conscious following mishap and prior to his death. Thompson v Offshore Co. (1977, SD Tex) 440 F Supp 752. (disapproved 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).

659. Seaman's status

In Jones Act suit, plaintiff has burden of proof on issue of his status as seaman. Yelverton v Mobile Laboratories, Inc. (1985, SD Miss) 608 F Supp 400, affd (CA5 Miss) 782 F2d 555.

Party seeking recovery under Jones Act bears burden of proving that he was seaman within meaning of statute at time of injury. Hines v Saylor Marine Corp. (1985, SD Ga) 615 F Supp 33.

660. Other issues

Under 46 USCS Appx § 688, burden is on plaintiff to obtain findings on necessary element of foreseeability of harm. Harms Marine Service, Inc. v Swiere (1966, Tex Civ App Beaumont) 411 SW2d 602, writ ref n r e, cert den 389 US 899, 19 L Ed 2d 223, 88 S Ct 227.

3. Defendant's Burden of Proof

661. Generally

Burden of proving that mortgagee, guarantor of mortgage, or any similar encumbrancer, not holder of equitable title, is employer for 46 USCS Appx § 688 purposes, is on one who asserts it. Fitzgerald v A. L. Burbank & Co. (1971, CA2 NY) 451 F2d 670, 14 ALR Fed 525.

In action under 46 USCS Appx § 688, it is not incumbent on defendant to make proof of any facts upon which it relies as defense until plaintiff has established prima facie liability of defendant for injuries sustained by plaintiff. Lykes Bros.-Ripley S. S. Co. v Pluto (1940, Tex Civ App) 146 SW2d 414, writ dismd.

662. Contributory negligence and assumption of risk

Employer has burden of proof to establish that seaman assumed risk of injury. W. R. Chamberlin & Co. v Rylander (1934, CA9 Cal) 68 F2d 362, 1934 AMC 192.

In Seaman's action under 46 USCS Appx § 688, defendant has burden to prove by preponderance of evidence, seaman's contributory negligence. Mason v Mathiasen Tanker Industries, Inc. (1962, CA4 Va) 298 F2d 28, 5 FR Serv 2d 938, cert den 371 US 828, 9 L Ed 2d 66, 83 S Ct 23; Nolan v Greene (1967, CA6 Ky) 383 F2d 814; Fleming v American Export Isbrandtsen Lines, Inc. (1970, SD NY) 318 F Supp 194, affd in part and revd in part on other grounds (CA2 NY) 451 F2d 1329.

Even though burden of establishing contributory negligence rests upon defendant, in suit under 46 USCS Appx § 688, contributory negligence may be shown by plaintiff's own evidence or may be fairly inferred from all facts and circumstances of case. Honea v Matson Navigation Co. (1972, ND Cal) 336 F Supp 793.

"Reasonable care" standard applies to defendants' counterclaim in seaman's action alleging negligence under Jones Act and unseaworthiness of vessel, where defendants alleged contributory negligence, because standard for contributory negligence is traditional negligence standard of whether seaman exercised care which reasonably prudent person would have exercised under circumstances. Brown v OMI Corp. (1994, SD NY) 863 F Supp 169, judgment entered, claim dismissed (1994, SD NY) 1994 US Dist LEXIS 18239.

In seaman's action for personal injuries, burden of proof of defenses of contributory negligence or act of fellow servant, if available, is on ship. Proctor v Sword Line, Inc. (1948, City Ct) 83 NYS2d 288.

663. Settlement and release

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

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

In action by seaman, burden is on party claiming prior settlement as defense to prove that earlier settlement was entered into by seaman with full understanding of his rights. Concepcion v United States Navy (1983, SD NY) 575 F Supp 23.

4. Admissibility of Evidence

664. Admissions

Statement of master upon hearing of accident "there goes my license" was admissible in proceeding against owner under 46 USCS Appx § 688, since master can bind owner of vessel; statements by mate that accident at sea during storm was his fault were not admissible, since mate cannot bind owner of vessel. Naylor v Isthmian S.S. Co. (1951, CA2 NY) 187 F2d 538, 1951 AMC 632.

Statement in captain's report that plaintiff, chambermaid, injured her back in rising from floor after placing piece of cardboard under leg of dresser, though admission binding on defendant, was not admission that injury was due to negligence or unseaworthiness of vessel. McLeod v Union Barge Line Co. (1951, DC Pa) 95 F Supp 366, affd (CA3 Pa) 189 F2d 610.

In action against employer for injury to seaman suffered when fellow employee let go of end of keg of cleaning powder they were carrying up stairway, statement of fellow employee in deposition reciting that he "let the container drop" was evidence of negligence on his part and sustained verdict for plaintiff. 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.

665. Custom and practice

In actions under 46 USCS Appx § 688, questions of custom or usage are for determination by jury. Southern R. Co. v Colonna (1933, CA4 Va) 64 F2d 237, cert den 289 US 762, 77 L Ed 1505, 53 S Ct 795.

It is proper to introduce into evidence, in case under 46 USCS Appx § 688, custom or practice in shipping industry as to duty and responsibility of watchman or second mate, when picking up barge to be attached to vessel as part of its tow, to inspect said barge in order to determine if it is safe, and if it is unsafe, to take necessary precautions to render it safe. Murphy v American Barge Line Co. (1948, DC Pa) 76 F Supp 276.

Towage custom is not measure of negligence or unseaworthiness, but evidence of prevailing industry standards may be considered as some evidence that ship was not unseaworthy and that defendant was not negligent; mere fact that accident occurs on ship does not indicate breach of ship owner's duty. Kiesel v American Trading & Production Corp. (1972, DC Md) 347 F Supp 673.

666. Habit and reputation

Evidence of the deceased's habits of work and his conduct as provider is admissible to help jury arrive at proper award of damages. Dixon v Serodino, Inc. (1964, CA6 Tenn) 331 F2d 668, 1964 AMC 1983.

In action for wrongful death brought under 46 USCS Appx § 688, with respect to question whether decedent was sober at time of his death, it was within trial court's discretion to reject competent scientific evidence in form of blood alcohol test where contrary evidence relative to decedent's condition on day of accident and to his general habits in general were offered. Sweeney v American S.S. Co. (1974, CA6 Ohio) 491 F2d 1085.

667. Expert and opinion evidence

Seaman's personal injury suit for damages on grounds of unseaworthiness and negligence under 46 USC Appx § 688 is not cause of action in which law predicates recovery upon expert testimony. Salem v United States Lines Co. (1962) 370 US 31, 8 L Ed 2d 313, 82 S Ct 1119, reh den 370 US 965, 8 L Ed 2d 834, 82 S Ct 1578 and on remand (CA2) 304 F2d 672.

To prove ventilating system so insufficient as to render shipowner liable for negligence in providing unsuitable quarters for crew, some expert testimony should be required. Rey v Colonial Nav. Co. (1941, CA2 NY) 116 F2d 580.

Testimony of marine experts that handling of mooring cables without reels was customary and safe method was sufficient to overcome assertion that vessel was unseaworthy in that shipowner failed to provide certain reels to aid in handling of mooring cables. Tol v United States (1948, CA9 Cal) 166 F2d 775.

Expert evidence as to whether plaintiff properly boarded vessel where plaintiff is suing under 46 USCS Appx § 688 for damages sustained in boarding vessel, is admissible only in discretion of trial court, and court did not err in allowing expert witness to answer question in hypothetical terms, as to whether use of line was proper method in boarding vessel, since this was basic issue in case. Casey v Seas Shipping Co. (1949, CA2 NY) 178 F2d 360.

In action under 46 USCS Appx § 688 to recover damages for personal injuries, where court had little empirical data from which he could establish normal earning capacity, trial court properly allowed expert testimony which used current wage earnings and information and projections therefrom to calculate loss of future earnings. Noack v American S.S. Co. (1974, CA6 Ohio) 491 F2d 937.

Testimony of expert in negligence case against shipowner under 46 USCS § 688 that it was "common sense" to conclude through process of elimination that seaman who disappeared aboard ship committed suicide was properly admitted, since review of record showed expert witness made judgment based on expertise as epileptologist that seaman did not fall overboard during seizure, and expert further testified to existence of correlation between epilepsy and suicide, so trial judge could well have concluded that testimony was specialized knowledge and would assist jury in its deliberations. Estate of Larkins v Farrell Lines, Inc. (1986, CA4 Md) 806 F2d 510.

Opinion offered by defendant's witness, regarding reason for parting of line supporting plaintiff and leading to his fall, was not expert testimony where it was not based on specialized knowledge or on tests. Cook v American S.S. Co. (1995, CA6 Mich) 53 F3d 733, 41 Fed Rules Evid Serv 1148.

Court did not commit plain error in allowing testimony of plaintiff's witness, expert in safety and workplace lifting, where testimony provided jury with specialized knowledge concerning safe lifting practices and training procedures, which helped jury to understand evidence and determine fact issue. Marceaux v Conoco, Inc. (1997, CA5 La) 124 F3d 730.

Ferryboat operator is denied use of expert economist to rebut testimony of injured seaman's economist regarding allegation of nearly $ 1 million in damages, where operator has known since September 1994 that plaintiff intended to call economics expert, waited until submission of joint pretrial order to identify its own economist, and then failed to produce expert's report until 2 1/2 months later, because seaman would be prejudiced if expert were permitted to testify, since discovery has been complete for months and joint pretrial order was submitted in June 1995, and it would be unfair to further delay 4-year-old case due to operator's untimeliness. Furlong v Circle Line Statue of Liberty Ferry (1995, SD NY) 902 F Supp 65.

Operation of transferring tarpaulins, occurring on fishing boat, from which suit under 46 USCS Appx § 688 arose, was not so typically marine in nature as to be beyond understanding of ordinary men and thus require expert opinion evidence. Mitchell v Wingard (1958) 52 Wash 2d 121, 323 P2d 908.

668. --Qualifications of experts

Court applied too strict standard in ruling that before witness could testify as expert in matter of whether negligent loading of vessel led to loss, witness had to show some previous experience, either in loading vessel in question or other identical vessels, where witness stated that same stability factors upon which he relied were applicable generally to vessels similar to one in question. Roth v Bird (1956, CA5 Fla) 239 F2d 257.

As former shipmaster with unlimited governmental license for any tonnage and any waters, witness had qualifications of expert as to requirements for life rings aboard particular vessels. Schlichter v Port Arthur Towing Co. (1961, CA5 La) 288 F2d 801, cert den 368 US 828, 7 L Ed 2d 32, 82 S Ct 50.

669. --Medical experts

Notwithstanding failure of any medical witness to testify that accident was cause of plaintiff's injury, jury's conclusion that accident aggravated previously latent condition was proper. Sentilles v Inter-Caribbean Shipping Corp. (1959) 361 US 107, 4 L Ed 2d 142, 80 S Ct 173.

It was for jury to determine whether accident caused injuries where views of medical experts were conflicting. Michalic v Cleveland Tankers, Inc. (1960) 364 US 325, 5 L Ed 2d 20, 81 S Ct 6.

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

Where qualified orthopedic specialist had examined plaintiff few days before trial and had at examination taken history of injury from plaintiff, such expert's testimony relating to history of injury as well as his writing memoralizing it should have been excluded, but since such evidence was merely repetitious of admitted facts, its admission was not reversible error. Van Camp Sea Food Co. v Nordyke (1944, CA9 Cal) 140 F2d 902, 1944 AMC 559, cert den 322 US 760, 88 L Ed 1587, 64 S Ct 1278.

Expert testimony as to medical consequences of delay by shipowner in rendering medical care to deceased is properly received in evidence where such testimony is relevant to issue of causation. Diaz v Lykes Bros. S.S. Co. (1956, CA2 NY) 229 F2d 269.

Medical expert must be able to articulate more than mere possibility of causal relationship between defendant's negligence and plaintiff's injury; therefore, trial court was correct in excluding physician's testimony stating "it's suspicious" that it "could have been" injury that induced symptoms. Mayhew v Bell S.S. Co. (1990, CA6 Ohio) 917 F2d 961.

Although conclusion of plaintiff's physician differed from those of defendant's medical experts, his testimony was admissible where he took complete history of plaintiff, conducted neurological examination, developed flow chart of possible diagnoses, took muscle biopsies, and conducted enzyme level tests. Cella v United States (1993, CA7 Ind) 998 F2d 418, 37 Fed Rules Evid Serv 1229, reh, en banc, den (CA7 Ind) 1993 US App LEXIS 20311.

670. Res gestae

Testimony of fellow employee of deceased that employee heard superior order deceased back to burning vessel to extinguish fire few moments before explosion which caused death was admissible as part of res gestae. Meagher v Wagner Tug Boat Co. (1932) 168 Wash 253, 11 P2d 245, cert den 287 US 657, 77 L Ed 567, 53 S Ct 120.

Exclamation of fellow seaman, present at time of accident, was admitted under res gestae rule. Glaser v Katalinich (1932) 169 Wash 133, 13 P2d 468.

671. Written records; log books

Where captain of tanker was ashore when seaman was injured when boom used in unloading fell down, striking him, but he returned to tanker 1 1/2 hours later and investigated mast, boom, and tackle at that time, and made following entry in ship's log: "Note. At 11:40 A. M., the u. bolt welded to the mast holding the boom, let go, in the weld, the boom fell down striking" seaman, such entry was admissible in evidence. Lopoczyk v Chester A. Poling, Inc. (1945, CA2 NY) 152 F2d 457, 1946 AMC 40.

Logbook of tug which towed barge on which plaintiff alleged he was injured was admissible to support denial of defendant that there had been any such accident. Zurich v Wher (1947, CA3 Pa) 163 F2d 791.

Smooth deck log was admissible on condition of weather at time of fatal injury where deck log and engineer's log were in conflict. Naylor v Isthmian S.S. Co. (1951, CA2 NY) 187 F2d 538, 1951 AMC 632.

In action by seaman against owner of vessel for personal injuries sustained as result of defective fire hose during fire drill, entries in deck log were admissible into evidence even though officer who made entries was available to testify by deposition since there was question as to this officer's recollection of events. Lindheimer v United Fruit Co. (1969, CA2 NY) 418 F2d 606.

672. --Medical

In action under 46 USCS Appx § 688, there was no prejudicial error in introduction into evidence of wireless message from marine hospital giving instructions for care of plaintiff's injuries or various statements made by doctor at hospital concerning plaintiff's injuries. Van Camp Sea Food Co. v Nordyke (1944, CA9 Cal) 140 F2d 902, 1944 AMC 559, cert den 322 US 760, 88 L Ed 1587, 64 S Ct 1278.

In suit under 46 USCS Appx § 688, seaman's hospital record at United States public health service hospital was admissible to show history of his injuries. Shaffer v Seas Shipping Co. (1955, CA3 Pa) 218 F2d 442, 1955 AMC 294, cert den 348 US 973, 99 L Ed 758, 75 S Ct 534.

In action under 46 USCS Appx § 688, copy of certificate under seal issued by surgeon in charge of United States Public Health Service stating result of examination of injured seaman on morning following accident, was admissible in evidence. Fitze v American-Hawaiian S.S. Co. (1941) 167 Or 439, 117 P2d 825.

673. Other particular evidence

Evidence that employer had paid injured employee maintenance after injury is admissible where trial judge was careful to instruct jury that this evidence was not determinative and that notwithstanding maintenance payments, issue of seaman status remained fact question to be resolved by jury under law as covered by other portions of court's charge. Savoie v Otto Candies, Inc. (1982, CA5 La) 692 F2d 363, 12 Fed Rules Evid Serv 269.

In 46 USCS Appx § 688 action, admission of testimony concerning conviction and imprisonment of plaintiff is not warranted where such conviction carried little probative value but great prejudice. Shows v M/V Red Eagle (1983, CA5 La) 695 F2d 114, 12 Fed Rules Evid Serv 149 (disagreed with Diggs v Lyons (CA3 Pa) 741 F2d 577, 16 Fed Rules Evid Serv 1, cert den (US) 85 L Ed 2d 513, 17 Fed Rules Evid Serv 632).

In Jones Act case in which plaintiff alleged that vessel which pinned his foot to another vessel was improperly manned, trial court did not abuse its discretion in excluding testimony that Coast Guard manning regulations were designed to avoid accidents resulting from operator's unfamiliarity with waters in which vessel was operating, since interpretation of regulations is not question of fact for jury but is question of law for court to decide. Mathes v The Clipper Fleet (1985, CA9 Cal) 774 F2d 980, 19 Fed Rules Evid Serv 577.

Evidence of plaintiff's prior felony conviction was properly admitted in Jones Act case to impeach plaintiff's credibility rather than to prejudice jury where there was inconsistency between plaintiff's deposition and trial testimony. Smith v Tidewater Marine Towing, Inc. (1991, CA5 La) 927 F2d 838.

Where oral settlement agreement in Jones Act case was ambiguous, it was appropriate for district court to use extrinsic evidence as aid in determining intent of parties. Guidry v Halliburton Geophysical Services, Inc. (1992, CA5 Tex) 976 F2d 938.

Plaintiff's references during trial to vessel's insurance adjuster as adjuster did not violate Federal Evidence Rule 411 where defendant did not object to references throughout first and second trials; moreover, mention of insurance coverage was permissible to show possible bias of adjuster as witness with regard to his translation of plaintiff's statement. Conde v Starlight I (1997, CA1 Mass) 103 F3d 210, 1997 AMC 1268.

District Court erred in excluding opinion testimony of lay witnesses where their opinion would be grounded in either experience or specialized knowledge. Wilburn v Maritrans GP (1998, CA3 Pa) 139 F3d 350, 1998 AMC 1217, 48 Fed Rules Evid Serv 1415.

In action for injuries suffered by seaman, plaintiff's testimony that he was informed by his superior officer that crew were to be paid 100% war bonus was not objectionable on ground that best evidence was written records showing what members of crew were paid, where plaintiff called for production of written records which were in defendant's possession, and defendant, having opportunity to do so, failed to produce them. Jones v Atlantic Refining Co. (1944, DC Pa) 55 F Supp 17, 1944 AMC 787.

Owing to strong federal maritime policy favoring uniformity, determination of admissibility of evidence on failure to use seat belts would be determined by federal law, rather than state law, in suit under 46 USCS Appx § 688 in which seamen sought to recover for injuries sustained while being transported in van to tugboat. Adams v Harbour Transp. Co. (1996, DC Conn) 16 F Supp 2d 171.

In action to recover damages for maintenance and cure under maritime contract and for personal injuries under 46 USCS Appx § 688 findings or recommendations of "C" Marine Board of Investigation, or approval thereof by director, or assistant director of Bureau of Marine Inspection and Navigation were not admissible, since findings and their approval were hearsay evidence and based on testimony taken in ex parte proceeding had without giving present plaintiff notice or opportunity to be present or cross-examine witness. Fegan v Lykes Bros. S. S. Co. (1940) 196 La 541, 199 So 635, 1941 AMC 44, conformed to (La App) 199 So 680, mod 198 La 312, 3 So 2d 632.

K. Appeal and Review

674. Generally

Even if admiralty procedural rules govern action brought under 46 USCS Appx § 688 when tried to court, when jury trial has been had, appellate review is controlled by USCS Rules of Civil Procedure. Blake v W. R. Chamberlin & Co. (1949, CA9 Cal) 176 F2d 511.

Findings in admiralty, including actions under 46 USCS Appx § 688, should be sufficiently specific to permit fair appellate review of manner in which trial court resolved issues upon which its judgment depends. Gypsum Carrier, Inc. v Handelsman (1962, CA9 Cal) 307 F2d 525, 4 ALR3d 517.

675. Reviewable decisions

Whether state court in trying case under 46 USCS Appx § 688 proceeded in such manner that all substantial rights of parties under controlling federal law would be protected raised federal question reviewable by Supreme Court. Garrett v Moore-McCormack Co. (1942) 317 US 239, 87 L Ed 239, 63 S Ct 246, 1942 AMC 1645.

Order in lower court entering judgment against seaman on claims for negligence under 46 USCS Appx § 688 and unseaworthiness was final denial of seaman's claims in these respects and constitutes appealable order, even though maintenance and cure claim still remained before District Court. Crews v Arundel Corp. (1967, CA5 Fla) 386 F2d 528.

In action for alleged joint negligence brought against one defendant under local tort law and against other defendant under 46 USCS Appx § 688, dismissal of local tort claim is not appealable until entry of final judgment and appeal taken prior to that time is incurably defective; only in event that Jones Act defendant is found liable would claim under local tort law survive. Kirtland v J. Ray McDermott & Co. (1978, CA5 La) 568 F2d 1166 (disagreed with Alcorn County v U.S. Interstate Supplies, Inc. (CA5 Miss) 731 F2d 1160, 39 FR Serv 2d 171, 76 ALR Fed 181) and (disagreed with Lac Courte Oreilles Band of Lake Superior Chippewa Indians v Wisconsin (CA7 Wis) 760 F2d 177, 2 FR Serv 3d 362).

District Court order staying proceedings brought by seaman until proceeds of allegedly fraudulently induced settlement were returned to employer was appealable under 28 USCS § 1292(a)(1) as interlocutory order granting injunction; were there any doubt Court of Appeals would treat appeal as petition for writ of mandamus and, finding clear abuse of discretion, would issue writ forthwith. Smith v Pinell (1979, CA5 La) 597 F2d 994.

While determination that plaintiff is not Jones Act [46 USCS Appx § 688] seaman is appealable, because it effectively terminates suit, portion of interlocutory order determining that plaintiff is § 688 seaman merely allows him to pursue his claim in hope of obtaining final judgment against defendant. Re Complaint of Patton-Tully Transp. Co. (1983, CA5 Miss) 715 F2d 219.

Judgment approving settlement in Jones Act was not final where judgment was not rendered on any intervenor claims. Noble Drilling v Davis (1995, CA5 La) 64 F3d 191.

676. Scope and standard of review

In reviewing judgment of trial court sitting without jury in admiralty, Court of Appeals may not set aside judgment below unless it is clearly erroneous; no greater scope of review is exercised by appellate tribunals in admiralty cases than they exercise under Rule 52(a) of Federal Rules of Civil Procedure; finding is clearly erroneous when although there is evidence to support it, reviewing court on entire evidence is left with definite and firm conviction that mistake has been committed. McAllister v United States (1954) 348 US 19, 99 L Ed 20, 75 S Ct 6, modif den 348 US 957, 99 L Ed 748, 75 S Ct 447.

Scope of review in admiralty appeals is identical to "clearly erroneous" rule in USCS Rules of Civil Procedure, Rule 52(a), which applies in ordinary nonjury civil case. Prendis v Central Gulf S.S. Co. (1963, CA4 Va) 330 F2d 893.

District Court's findings regarding unseaworthiness and negligence are generally treated as findings of fact reviewable under "clearly erroneous" standard of USCS Rules of Civil Procedure, Rule 52(a). Tucker v Calmar S.S. Corp. (1972, CA4 Md) 457 F2d 440.

Appellate review of actions brought under 46 USCS Appx § 688 is limited by "clearly erroneous" standard of USCS Rule of Civil Procedure, Rule 52(a); trial court commits error in disbelieving plaintiff's testimony when sole witness was plaintiff, whose deposition taken 8 months prior to trial amply warned defense of actual allegations, yet no witnesses were called to refute crucial testimony of events leading to injury; trial court order of summary judgment against plaintiff should be reversed as plaintiff's version was neither contradicted nor directly impeached. Santana v United States (1977, CA1 Puerto Rico) 572 F2d 331.

Trial court's resolution of issues of unseaworthiness must be considered as findings of fact and Court of Appeals must accept them unless convinced they are demonstrably incorrect. Chisholm v Sabine Towing & Transp. Co. (1982, CA5 Tex) 679 F2d 60.

Appropriate standard of review for Court of Appeals to test sufficiency of evidence in Jones Act [46 USCS Appx § 688] and unseaworthiness claims tried before jury is whether there is reasonable evidentiary basis for jury's verdict and reviewing court will not disregard jury's fact findings as to questions independently propounded, even if fundamentally wrong result has been reached. Loehr v Offshore Logistics, Inc. (1982, CA5 La) 691 F2d 758.

Determining shipowner's base of operations, where relief is sought under Jones Act by foreign seaman against foreign vessel operator as employer, is factual finding which Court of Appeals will not disturb on review unless clearly erroneous. Dalla v Atlas Maritime Co. (1985, CA9 Cal) 771 F2d 1277.

Appellate review of determination of whether injured worker is seaman under Jones Act, which is mixed question of law and fact, is plenary. Roberts v Cardinal Servs. (2001, CA5 La) 266 F3d 368.

Application of terms "seamen" and "vessel" to particular circumstances of case is best left to trier of fact; even where underlying facts are not in dispute, if conflicting inferences can be drawn, Court cannot as matter of law rule that movant has or has not met necessary factual predicates. Hartley v Peter Kiewit Sons' Co. (1982, ED NY) 543 F Supp 401.

Scope of state court's review in Jones Act (46 USCS Appx § 688) cases is same as that accorded Federal appellate courts. Smith v Cameron Crews, Inc. (1977, La App 3rd Cir) 348 So 2d 179, cert den (La) 351 So 2d 169.

677. State appellate review

In suit in state court under 46 USCS Appx § 688, if error is shown to have occurred during trial court proceedings, there should be reversal unless it affirmatively appears from whole record that it was not prejudicial. Pearson v Tide Water Associated Oil Co. (1950, Cal App) 223 P2d 669, hear gr by sup ct, app dismd.

In cases tried under 46 USCS Appx § 688 in state courts, appellate review of facts is restricted to inquiry of whether evidence reasonably supports factual findings of jury. Turner v D & A Constr. Co. (1969, La App 3rd Cir) 220 So 2d 223.

Review by state appellate court of jury verdict in suits under general maritime law as expanded by 46 USCS Appx § 688 is necessarily identical to that of federal courts; even though state appellate courts have authority from their state constitution to review both law and facts of case, they may not, under federal law and jurisprudence, disturb finding of trial jury on merits in case under 46 USCS Appx § 688 unless there is no reasonable basis for jury's conclusion; state appellate review of jury awards under maritime law and under 46 USCS Appx § 688 is, as in federal courts, extremely limited and must stand unless appellate courts find there is no law and no evidence to sustain them, rendering them so excessive as to be obviously punitive, motivated by prejudice, passion, partiality or corruption. Trahan v Gulf Crews, Inc. (1971) 260 La 29, 255 So 2d 63.

Review of jury's verdict in case under 46 USCS Appx § 688 by state appellate court, with reversal for want of sufficient evidence, does not amount to denial of right to trial by jury. Hopson v Gulf Oil Corp. (1951) 150 Tex 1, 237 SW2d 352.

678. --Federal rules applicable

State rule that appellate courts may hear appeals on both facts and law and may reverse lower court on finding of fact when such factual determination is deemed erroneous does not apply to claim under 46 USCS Appx § 688 tried in state courts. Presley v Upper Mississippi Towing Corp. (1961, La App 1st Cir) 141 So 2d 411.

Appellate review by state appellate court of case brought under 46 USCS Appx § 688 and general maritime law is governed by Rule 52(a) of Federal Rules of Civil Procedure. Melancon v I. M. C. Drilling Mud (1973, La App 1st Cir) 282 So 2d 532, application den (La) 283 So 2d 769 and application den (La) 283 So 2d 771.

Scope of State Court of Appeal review in cases brought under Jones Act (46 USCS Appx § 688) is same as that accorded Federal Appellate Courts. Smith v Cameron Crews, Inc. (1977, La App 3rd Cir) 348 So 2d 179, cert den (La) 351 So 2d 169.

State court was governed by federal rule as to whether there was substantial evidence tending to show breach of duty by defendant in determining sufficiency of evidence to support verdict in action under 46 USCS Appx § 688. King v Nicholson Transit Co. (1951) 329 Mich 586, 46 NW2d 389, cert den 342 US 886, 96 L Ed 665, 72 S Ct 176.

In determining whether evidence is sufficient to support verdict in case involving 46 USCS Appx § 688, state appellate court is governed by federal rule as to whether there is substantial evidence tending to show breach of duty on part of steamship company. Lieflander v States S. S. Co. (1935) 149 Or 605, 42 P2d 156.

State appellate court, in passing upon question of excessiveness of verdict in action brought under 46 USCS Appx § 688, should accord to trial court's determination of that matter as much consideration as given by federal appellate courts to similar rulings of federal trial judges. McCauley v Pacific Atlantic S.S. Co. (1941) 167 Or 80, 115 P2d 307.

Power of state appellate court to determine for itself from examination of evidence what damages are and to enter judgment for amount so found cannot be exercised in case arising under 46 USCS Appx § 688, because it would affect fundamental rights of plaintiff which are controlled by federal decisions; exercise by state appellate court of its asserted power under state law to reduce amount of verdict and enter judgment for lesser sum than that found by jury constitutes failure to observe traditional lines of demarcation between functions of court and jury which state courts must maintain in order that intention of Congress in enacting 46 USCS Appx § 688 may be effected. Hust v Moore-McCormack Lines, Inc. (1947) 180 Or 409, 177 P2d 429.

679. Sufficiency of evidence

Appellate court's function in testing sufficiency of evidence in cases under 46 USCS Appx § 688 is exhausted when evidentiary basis for jury's verdict becomes apparent, it being immaterial that court might draw contrary inference or feel that another conclusion is more reasonable. Lavender v Kurn (1946) 327 US 645, 90 L Ed 916, 66 S Ct 740.

On appeal from judgment for plaintiff in suit by seaman to recover for personal injuries, under 46 USCS Appx § 688, sufficiency of evidence as basis for verdict was to be tested by taking as standard whatever facts jury might reasonably have found which were supported by substantial evidence together with such reasonable inferences therefrom as might have been drawn. Reskin v Minnesota-Atlantic Transit Co. (1939, CA2 NY) 107 F2d 743, 1940 AMC 111.

Sufficiency of evidence as basis for verdict in case under 46 USCS Appx § 688 is to be tested by appellate court by taking as standard whatever facts jury might reasonably have found which were supported by substantial evidence together with such reasonably inferences therefrom as might have been drawn. Reskin v Minnesota-Atlantic Transit Co. (1939, CA2 NY) 107 F2d 743.

Sufficiency of findings by trial court in case under 46 USCS Appx § 688 is considered by appellate court with reference to provisions of USCS Rules of Civil Procedure, Rule 52. Matson Navigation Co. v Hansen (1942, CA9 Cal) 132 F2d 487.

In attempting to decide whether there was introduced sufficient evidence of causal negligence under 46 USCS Appx § 688 count of complaint, and of unseaworthiness under second count of complaint, appellate court must be concerned solely with whether testimony on behalf of plaintiff, and reasonable inference to be drawn from it in light most favorable to plaintiff, made out prima facie case allowing plaintiff to have jury pass upon his cause of action. Numes v Farrell Lines, Inc. (1955, CA1 Mass) 227 F2d 619.

Under 46 USCS Appx § 688 and 45 USCS § § 51 et seq., tests of sufficiency of evidence is merely whether proofs justify with reason conclusion; it does not matter that, from evidence, jury may also with reason, on ground of probability, attribute result to other causes, including plaintiff's own negligence. Barboza v Texaco, Inc. (1970, CA1 Mass) 434 F2d 121.

Constitutional requirement, that sufficiency of evidence to support verdict is for jury in first instance and under Seventh Amendment, re-examination of facts found by jury is strictly limited to rules of common law, is reinforced by statute in cases brought under 46 USCS Appx § 688. Menard v Penrod Drilling Co. (1976, CA5 La) 538 F2d 1084 (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).

Appropriate standard for testing sufficiency of evidence in case brought under 46 USCS Appx § 688 is whether there is reasonable evidentiary basis for jury's verdict. Campbell v Seacoast Products, Inc. (1978, CA5 La) 581 F2d 98.

For sufficiency claims arising under 46 USCS Appx § 688, standard of review is stricter, reflecting corresponding leniency of evidentiary showing required to make out case under § 688; court applies same standard whether reviewing findings regarding defendant's or plaintiff's negligence. Fontenot v Teledyne Movible Offshore, Inc. (1983, CA5 La) 714 F2d 17.

Ordinarily, Court of Appeals review sufficiency of evidence by stricter standard for 46 USCS Appx § 688 claims than for other claims such as unseaworthiness; this is corrollary of lighter burden of proof demanded of seaman to make out claim under 46 USCS Appx § 688. Robin v Wilson Bros. Drilling (1983, CA5 La) 719 F2d 96.

Court will not disturb jury award of $ 900,000 for plaintiff seaman's back injury where there was ample evidence regarding injury, inability to earn living, and pain and suffering. Diefenbach v Sheridan Transp. (2000, CA1 Mass) 229 F3d 27.

Appellate function in 46 USCS Appx § 688 cases has been narrowed to extent that very little evidence is necessary to uphold factfinding of negligence. Brown & Root, Inc. v Wade (1974, Tex Civ App Houston (14th)) 510 SW2d 408, writ ref n r e.

680. --Particular circumstances

In action against shipowner arising out of death of seaman based upon aggravation of tubercular condition due to condition of quarters, certificate of inspection was not conclusive of condition of ship and quarters. Murphy v Overlakes Freight Corp. (1949, CA2 NY) 177 F2d 342, cert den 339 US 913, 94 L Ed 1339, 70 S Ct 573.

Even though appellate court is bound by findings of fact of district judge if they are supported by substantial evidence and are not clearly erroneous, appellate court may attach different legal interpretation to word "crew" from that applied by district judge in deciding whether 46 USCS Appx § 688 is relevant. Wilkes v Mississippi River Sand & Gravel Co. (1953, CA6 Tenn) 202 F2d 383, cert den 346 US 817, 98 L Ed 344, 74 S Ct 29.

With respect to District Court's findings that headaches of plaintiff suing under 46 USCS Appx § 688 resulted from collision of purse boat on which he was serving with purse boat of his captain, District Court had before it relevant and competent evidence supporting its conclusions and judgment on both physical and fiscal extent of plaintiff's suffering; thus appellate court was precluded from substituting its own assessment of disputed facts for considered judgment of trial judge who heard all testimony and observed demeanor of witnesses. Brown v Aggie & Millie, Inc. (1973, CA5 La) 485 F2d 1293.

In suit claiming Jones Act (46 USCS Appx § 688) negligence by vessel employee who sustained injuries in fall while debarking from vessel onto dock via slanting metal ramp that was only means of ingress and egress from vessel, evidence does not justify upsetting verdict in favor of vessel owner and operator of dock facility where employee was obese woman, ramp had nonskid tread and was used by crewmembers to go to and from vessel, ramp could be readily negotiated and was adequately lighted, there was no evidence of any slippery substance on ramp, and employee testified that she was wearing her "ballerina" shoes rather than her regular shoes she wore as member of crew. Thornton v Gulf Fleet Marine Corp. (1985, CA5 La) 752 F2d 1074.

Where there was only mere scintilla of evidence shown as to dermatological condition of plaintiff seaman and his failure to prove causal relationship to injury sustained, court was compelled to direct verdict for defendant shipowner-employer, as reasonable men and women could not differ in finding of no negligence. Diddlebock v Alcoa S.S. Co. Inc. (1964, ED Pa) 237 F Supp 538, 1966 AMC 444.

Post-trial motion for partial new trial on issue of punitive damages was denied where evidence was insufficient to justify finding that decedent's death after going berserk was result of malicious motive of, or conscious or reckless indifference to interests of decedent by defendant. Phillip v United States Lines Co. (1965, ED Pa) 240 F Supp 992, 1965 AMC 494, affd (CA3 Pa) 355 F2d 25, 1966 AMC 292.

In suit by plaintiff to recover for death of decedent based on theory that death by drowning was due to defective gangplank, motion to set aside verdict in favor of plaintiff was denied, where evidence showed that decedent was last seen approaching gangplank few seconds prior to splash in water, since standard for measuring amount of evidence necessary to carry case to jury is liberal federal standard. Pate v New York (1951, Sup) 106 NYS2d 378.

681. Damages

In action brought under 46 USCS Appx § 688, appellate court may review damage awards of jury; absent abuse of discretion by jury, damage verdict will not be set aside. Ballard v Forbes (1954, CA1 Mass) 208 F2d 883.

Determination of damages under 46 USCS Appx § 688 is factual question, finding that will not be disturbed by appellate court, unless final result or method used by trial court in reaching result was clearly erroneous, even though appellate court might have reached different result or even used slightly different method of arriving at that result. Gardner v National Bulk Carriers, Inc. (1964, CA4 Va) 333 F2d 676.

In action under 46 USCS Appx § 688, where jury was so misinformed, and to some extent uninformed, in that it did not have before it proper instructions and advice regarding damages issue, extraordinary remedy of remanding to have jury redetermine damages under correct statement of applicable law is justified. Crador v Boh Bros., Inc. (1973, CA5 La) 473 F2d 1040.

Standard in cases under 46 USCS Appx § 688 for reviewing refusal of trial judge to disturb verdict as inadequate is same as when he has refused to upset one as excessive. Ressler v States Marine Lines, Inc. (1975, CA2 NY) 517 F2d 579, cert den 423 US 894, 46 L Ed 2d 126, 96 S Ct 193.

Amount of maintenance to which injured seaman is entitled is question of fact and will not be overturned unless clearly erroneous. Thezan v Maritime Overseas Corp. (1983, CA5 La) 708 F2d 175, cert den 464 US 1050, 79 L Ed 2d 189, 104 S Ct 729.

Court's finding of $ 15 maintenance per day is subject to clearly erroneous standard on review. Campbell v Teledyne Movible Offshore, Inc. (1983, CA5 La) 714 F2d 429.

682. De novo consideration on appeal

Case under 46 USCS Appx § 688, being in admiralty, may be tried de novo in appellate court. Johnson v Griffiths S.S. Co. (1945, CA9 Wash) 150 F2d 224.

Even though appeal in admiralty is trial de novo, upon such appeal, findings of District Court as to facts will be accepted by appellate court unless clearly against preponderance of evidence. Buford v Cleveland & Buffalo S.S. Co. (1951, CA7 Ill) 192 F2d 196.

In admiralty matters, there is no longer trial de novo on appeal, and federal appellate tribunals have no greater scope of review in admiralty actions than they have under USCS Rules of Civil Procedure, Rule 52(a). Clinton v Joshua Hendy Corp. (1959, CA9 Cal) 264 F2d 329.

District Court's conclusion that Liberian Law, rather than Jones Act, governs case is question of law subject to de novo review by Court of Appeals. Pereira v Utah Transport, Inc. (1985, CA9 Cal) 764 F2d 686, cert dismd (US) 89 L Ed 2d 362, 106 S Ct 1253.

Whether claim has been stated under Jones Act is question of law subject to de novo review. Dalla v Atlas Maritime Co. (1985, CA9 Cal) 771 F2d 1277.

District Court's determination of subject matter jurisdiction under Jones Act is question of law and reviewed de novo. Trentacosta v Frontier Pacific Aircraft Industries, Inc. (1987, CA9 Cal) 813 F2d 1553.

683. Lack of witnesses or testimony in lower court

Where all material facts in case under 46 USCS Appx § 688 were established by deposition, findings of District Court are not accorded as great weight as they might be if that court had had opportunity to observe and hear witnesses testify to facts. Johnson v Griffiths S.S. Co. (1945, CA9 Wash) 150 F2d 224.

Principle that in admiralty cases no greater scope of review is exercised by appellate tribunals than they exercise under USCS Rules of Civil Procedure, Rule 52(a), applies with less force where most of evidence is in form of depositions, and where district judge did not have opportunity to observe those witnesses. Spanos v The Lily (1958, CA4 Va) 261 F2d 214.

684. Miscellaneous

Conclusion of Deputy Commissioner, judge, or jury that one is or is not master or member of crew is not binding upon reviewing court if basic facts competently found by deputy commissioner, judge, or jury rightly call for different conclusion. Schantz v American Dredging Co. (1943, CA3 Pa) 138 F2d 534.

Falsity of plaintiff's testimony in case under 46 USCS Appx § 688 was plausible argument to be made to jury but cannot be considered by appellate court. Schybinger v Interlake S.S. Co. (1959, CA7 Ill) 273 F2d 307.

Issue of shipowner's liability, when submitted to jury on grounds of unseaworthiness and negligence, can be upheld only if sustainable under both theories. Horton v Moore-McCormack Lines, Inc. (1964, CA2 NY) 326 F2d 104, 8 FR Serv 2d 14a.42, Case 1.

L. Settlement

685. Generally

Tugboat owner is entitled to evidentiary hearing on his motion to rescind agreement settling seaman's claim based on disabling arm injury, so that owner could present motion picture evidence of seaman lifting various sorts of building materials. Russell v Puget Sound Tug & Barg Co. (1984, CA9 Wash) 737 F2d 1510.

Where injured seaman enters into settlement agreement containing "Mary Carter" provision providing that settling defendant will be remibursed to specified degree from any recovery plaintiff receives in suit against nonsettling defendant, court's discretion in approving and enforcing agreement, as well as in disclosing terms thereof to jury, is magnified, since seaman is traditional ward of admiralty; adequacy of consideration is relevant in admiralty court's scrutiny of seaman's release, and party asserting release has burden of affirmatively showing that no advantage has been taken. Wilkins v P.M.B. Systems Engineering, Inc. (1984, CA5 Tex) 741 F2d 795.

Settlement of suit for injury under traditional admiralty claim in negligence under 46 USCS Appx § 688 was improper by set-off against company's annuities and benefits plan since such settlement cannot be classified as "benefit resulting from premiums. . . paid by any of Gulf companies under any Workmen's Compensation law or similar legislation." Dupree v Gulf Oil Corp. (1971, ED Tex) 328 F Supp 480.

Motion of injured seaman to enforce alleged settlement agreement must be denied where corporate defendant challenged both existence of agreement and scope of counsel's authority to settle case, and plaintiff failed to show "meeting of the minds" sufficient to result in binding and enforceable oral settlement agreement made with either actual or apparent authority. Thompson v Continental Emsco Co. (1986, SD Tex) 629 F Supp 1160.

Settling maritime defendants' motions under state code provision for declaration of good faith settlement precluding subsequent actions for contribution and indemnity are denied and denials will not be certified for interlocutory appeal under 28 USCS § 1292, because (1) state procedural statutes governing settlement of state torts do not apply to Jones Act (46 USCS Appx § 688) and maritime actions, (2) immediate appeal will not resolve federal rule regarding settlement of multidefendant maritime actions, and (3) interests of public and injured seaman call for prompt and just resolution of claims. Daughtry v Diamond M Co. (1988, CD Cal) 693 F Supp 856.

686. Claims of minors

In action brought under 46 USCS Appx § 688, court is mindful of its obligations to protect interests of minors and in so doing, to scrutinize terms of any proposed settlement of their lawful claims. Donnarumma v Barracuda Tanker Corp. (1978, CD Cal) 79 FRD 455.

Settlement of minor-beneficiaries' claim executed by minors' natural tutrix with defendants after action to enforce minors' claim was instituted by personal representative of decedent, is invalid. Benoit v Fireman's Fund Ins. Co. (1978, La) 355 So 2d 892, on remand (La App 3d Cir) 361 So 2d 1332.