Jones Act Regulatory Basis of Liability
1. Remedies of Seaman for Injury or Death
- Maintenance and cure under general maritime law
- Cause of action for unseaworthiness under general maritime
- Cause of action for negligence under Jones Act
2. Jones Act
- Also called Merchant Marine Act of 1920, recently recodified at 46 U.S.C. §§ 30104, 30105, 30106(prior to recodification 46 U.S.C., §688 et. seq.)
- Creates a cause of action of negligence against employer for any seaman injured during employment
- Incorporates Federal Employers Liability Act, FELA, 45 U.S.C. §§ 51-60.
3. Who is the Defendant : Employer
- Employed by private corporations, private entity or private individual
- Employed by public entity
- Federal Employees Compensation Act (FECA)
- applies whether on vessel owned by US or owned by private entity
- no Jones Act claim
Employed by private corporation, entity or individual but United States owned vessel being operated pursuant to contract
- Suits in Admiralty Act, 46 U.S.C. § 30901 ( prior to recodification 46 U.S.C §§ 741-752) & Public Vessels Act, 46 U.S.C.§ 31101 (prior to recodification 46 U.S.C. § 782)
- 2 year statute of limitations, suit cannot be filed until claim administratively disallowed which occurs when MARAD fails to give written notice of allowance or disallowances within 60 days of receipt of the claim
- Notice letter pursuant to 46 C.F.R. § 327
- Non jury trial
- Venue is where Plaintiff resides, Plaintiff’s principal place of business or vessel found,
- Admiralty Extension Act, 46 U.S.C. App. § 30101 (prior to recodification 46 U.S.C. App. § 740)
- Suits cannot be brought against the United States until 6 months after the claim was filed with the agency that owns the vessel
- Applies in cases where the vessel was on navigable waters but injury was done on land
Employed by State
- Need state statute waiver of sovereign immunity
- Nrought in state court
- Need to look at state statute and case law to determine whether allow Jones Act cases
- Need to look at what is state notice and statute requirement and follow that
- 4. Statute of Limitations
- 3 years statute of limitations, except PVA, SAA and individual state, Supra 3c,d
- Date begins when seaman aware or should have been aware of his injury and causal connection to work
- For latent injury cases the statute runs on date seamen discovered or reasonably should have discovered both injury and cause
- Individual State statutes and presentment notice, need to look for their notice and suit requirements
5. Seaman Status
- Test for seaman status established in McDermott International, Inc. v. Wilander, 498 U.S. 337, 11 S.Ct. 807, 112 L.Ed. 2d 866 (1991) and Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.E.2d 314 (1995)
- Seaman “must contribute to the function of the vessel or to the accomplishment of its mission.” Wilander, 498 U.S. at 355.
- Seaman have “employment related connection to vessel in navigation that is substantial in terms of both its duration and its nature” Chandris, Inc., 515 U.S. at 368, 370.
- What qualifies as vessel for determining seaman status
“The word “vessel” includes every description of watercraft or other artificial contrivance used, or capable of being used as a means of transportation on water.” Citing 1 U.S.C. § 3, Stewart v. Dutra Constr. Co., 543 U.S. 481, 125 S.Ct. 1118, 160 L.Ed. 2d 932 (2005)
- Seaman can be assigned to a fleet of vessels as long as establish common ownership or control over the vessels, Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 117 S.C. 1535, 137 L.Ed.2d 800 (1997),
- Scientific Personnel on Oceanographic Vessels
- Case law has interpreted that scientific personnel who serve on research vessels are not considered Jones Act seamen under Oceanographic Research Vessel Act, (ORVA) 46 U.S.C. App. § 441 et. seq.
- Key case is Presley v. Caribbean Seal, 709 F.2d 406 (5th Cir. 1983)-
- Arguably it is up to interpretation, District Court case of Presley v. Caribbean Seal, 537 F.Supp. 956 (S.D. Tex. 1982),-good legislative history of why scientific personnel should be Jones Act seaman
- Also argue that Plaintiff’s duties on vessel do not classify as scientific personnel
- Need to examine what worker did on vessel and establish that not scientific personnel
- Not in Fifth Circuit fight that ORVA not exclude scientific personnel as seamen
- Jones Act excludes foreign seaman engaged in offshore oil and gas production
- Jones Act not limited to seamen who hold American citizenship or are residents of United States, if vessel flies United States flag then seaman on board, both American and foreign are covered under the Jones Act
- Problems arise of being dismissed on jurisdiction and foreign non convenience
8 factors examine to determine whether case stays
- Place of wrongful act
- Law of flag
- Allegiance or domicile of the injured party
- The allegiance of the defendant ship owner
- The place of the employment contract
- The accessibility of a foreign forum
- The law of forum
- Ship-owners base of operation
- Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), Hellenic Lines, Ltd. V. Trhoditis, 398 U.S. 306, 90 S.Ct 1731, 26 L.ed.2d 252 (1970)
6. Commencement of Lawsuit
- Need to satisfy minimum contacts standards set forth in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.C.t 154, 90 L.Ed. 95 (1945)
- Subject Matter Jurisdiction-need to determine whether federal or state court
- Admiralty law-invoke Rule 9(h)-no right to jury trial, 28 U.S.C. § 1333
- Federal questions, 28 U.S.C. § 1331, jury trial
- Diversity, 28 U.S.C. § 1332, jury trial
- File claim under the saving to suitors clause, 28 U.S.C. § 1331(1)
- Cannot be removed to federal court, useful if trying to keep case in certain state
- In any federal court in which Defendant incorporated, licensed to do business or does business, Pure Oil Co., v. Suarez, 384 U.S. 202, 86 S.Ct 1394, 1395, 16 L.Ed. 2d 474 (1966)
7. Standard of Liability
- Failure to use reasonable care
- Reasonable care is the degree of care that reasonably prudent persons would use under like circumstances to avoid injury to self
- Duty to provide a reasonably safe place to work and maintain vessel in reasonably safe condition
- Act through officers, employees, agents
- Legal cause
- Have to prove that negligence was cause of injury
- Defendant’s negligence is a legal cause of injury or damage if played any part, no matter how small in bringing about or causing the injury or damage
- Defendant’s negligence can operate in combination with acts of another a natural cause or other cause
- Burden of proof is slight, “feather light” standard
- Unique to Jones Act and FELA cases
- You need only find that there was some evidence that the Defendants’ negligence played a part, however small, in the development of the Plaintiff’s illness and condition complained of, Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448 (1957), Gautreaux v. Scurlock Marine, Inc., 84 F.3d 776, 782 (5th Cir. 1996), affirmed in part and reversed in part on other grounds, 107 F.3d 331, 339 (5th Cir. 1997 (en banc), Davis v. Odeco, Inc., 18 F.3d 1237, 1242-1243 (5th Cir. 1994), cert. den., 513 U.S. 819, 115 S.Ct. 78 (1994),
- If you are unable to separate the cause or causes of the Plaintiff’s illness and death between an illness caused or exacerbated by the defendants’ conduct and that resulting from a pre-existing condition, the defendants are liable for all such injuries that you have found the Plaintiff to have suffered., Stevens v. Bangor and Aroostook Railroad Company, 97 F.3d 594, 603 (1st Cir. 1996).
9. Contributory Negligence
- Prove Plaintiff was negligent and that negligence was cause of injury-same standard of negligence and causation defined above, Supra, 8a, Norfolk Southern Railway Corp. v. Sorrell, 127 S.Ct 799, 166 L.Ed.2d 638 (2007)
- Does not bar recovery, damages reduced by whatever percent jury/judge finds contributory negligence caused or contributed to Plaintiff’s injury
- If seaman’s actions were sole proximate cause of injuries, not recover
- Pure comparative negligence
10. Assumption of Risk
- Seaman not liable because worked in dangerous job, place or condition
- Does not assume risks from obvious conditions
11. Primary Duty Rule
- Equivalent of finding no negligence
- Three principals “First, the “primary duty” rule will not bar a claim of injury arising from the breach of a duty that the plaintiff did not consciously assume as a term of his employment. Second, the rule does not apply where a seaman is injured by a dangerous condition that he did not create and, in the proper exercise of his employment, could not have controller or eliminated. Third, the rule applies only to a knowingly violation of a duty consciously assumed as a term of employment. It does not apply to a momentary lapse of care by an otherwise careful seaman” Bernard v. Maersk Lines, Ltd., 22 F.3d 903, 907 (9th Cir. 1994), Moore v. The Sally J., 27 F. Supp. 2d 1255, 1262-63 (W.D. Wash. 1998).
12. Liability Jones Act & Statutory Violation
Negligence Per Se
- An employer’s violation of an applicable Coast Guard safety regulation that causes injury or death is negligence per se. Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed. 2d 382 (1958); Smith v. Trans-World Drilling, Co., 772 F.2d 157 (5th Cir. 1985).
- Does not matter if the injury/death was not one which the stature was designed to prevent.
- In The Pennsylvania Supreme Court held that in a collision case, where one party violates a statute or regulation intended to prevent collision, the burden of proof shifts to the offending party to establish that the violation “could not have been” a cause of the collision. 86 U.S. (19 Wall) 125, 22 L.Ed. 148 (1873).
- Circuits have expanded the application of the Pennsylvania Rule to cover all types of Coast Guard regulations and all types of marine casualties. Continental Grain Co. v. Puerto Rico Maritime Shipping Authority, 972 F.2d 426, 436 (1st Cir. 1992), Reyes vs. Vantage Steamship Co., Inc., 609 F.2d 140 (5th Cir. 1980)(Jones Act death case); Candies Towing Co., Inc. v. M/V B&C Eserman, 673 F.2d. 91 (5th Cir. 1982) (sinking with cargo loss); Folkstone Maritime Inc. v. CSX Corp., 64 F.3d 1037 (7th Cir. 1995)(allusion case); In Re Seaboard Shipping Corp., 449 F.2d 132 (2nd Cir. 1971)(Limitation proceeding involving drowning of seamen); Smith v. Mitlof, 130 F.Supp. 2nd 578 (S.D.N.Y. 2001)(passenger case).
- -under the rule established in The Pennsylvania and expanded in Continental Grain, once a Plaintiff establishes that the Defendant violated an applicable Coast guard regulation, the burden rests upon the Plaintiff “of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been” one of the causes. 972 F.2d at 436 (emphasis added). See also, Pennzoil Producing Co. v. Offshore Exp., Inc., 943 F.2d 1465, 1471-1472 (5th cir. 1991), Waterman S.S. Corp. v. Gay Cottons, 414 F.2d 724, 736-737 (9th Cir. 1969);).
- Does not establish fault
- Does not eliminate contributory negligence
No contributory negligence
- § 53 of the F.E.L.A eliminates the defense of contributory negligence where the employer violates a safety statute
- If prove that statute was designed to prevent injury that occurred, that Defendant violated statute and prove that violation of statute caused injury then there is no contributory negligence, Kernan v. American Dredging Co., 355 U.S. 426 (1958); Fuszek v. Royal King Fisheries, Inc., 98 F.3d 514, 517 (9th Cir. 1996); Pratico v. Portland Terminal Co., 783 F.2d 255 (1st Cir. 1985); Roy Crook and Sons, Inc v. Allen, 778 F.2d 1037, 1986 AMC 2731 (5th Cir. 1985); Kelly v. Keystone Shipping, Co., 281 F.Supp. 2nd 313 (D.Ma. 2003); Martin vs. Cape Fear, Inc. 2004 U.S. Dist. LEXIS 7722 (D.Ma. 2004).
13. Statements of Employees
- 45 U.S.C.§ 60 authorizes ex parte communication with employees of the Defendant before and during lawsuit
- -problem is that each district interprets § 60 differently as to whether allow contact or not
- Cases where FELA preempts Professional Rule 4.2- Pratt v. National Railroad Passenger Corporation, 54 F. Supp. 2d 78 (D.MA 1999); Blasena v. Consolidated Rail Corp., 898 F. Supp. 282 (D.N.J. 1995), United Transportation Union Local Unions 385 and 77, 1995 WL 634906 (S.D.N.Y. 1995),
- Cases where FELA does not preempts Professional Rule 4.2- Weibrecht v. Southern Illinois Transfer, 241 F.3d 875 (7th Cir. 2001), Groppo v. Zappa, Inc., 2005 U.S.Dist.Lexis 5651 (D.MA 2005), In the Matter of the Complaint of PMD Enterprises Inc., 215 F.Supp.2d 519 (D. N.J. 2002), Tucker v. Norfolk & Western Railway Comp., 849 F. Supp. 1096 (E.D. VA 1994), Queensberry v. Norfolk and Western Railway Comp., 157 F.R.D. 21 (E.D. VA 1993), Woodard v. Nabors Offshore Corp., 2001 WL 13339 (E.D.La 2001), Belote v. Maritrans Operating Partners, L.P., 1998 WL 136523 (E.D.Pa 1998).
- Past and future lost wages/Impairment to earning capacity
- Past and future pain and suffering, mental anguish, disfigurement
- Past and future medical bills/expenses
15. Death of Seaman
- Incorporates wrongful death and survival sections of FELA, 45 U.S.C. § 51, 59.
- Person bring suit as the personal representative of deceased and the beneficiaries are the surviving widow of husband and children
- Whether death occurs on high seas or within marine league
- Jones Act preempts any liability under state wrongful death statute
- Damages available are loss of support, services, loss of nurture, training, education and loss of inheritance, conscious pain and suffering
- No damages for loss of society and consortium-same as Death on the High Sea Act
- Jones Act
46 USCS §30104
§30104. Personal injury to or death of seaman
(a) Cause of action. A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.
(b) Venue. An action under this section shall be brought in the judicial district in which the employer resides or the employer’s principal office is located.
46 USCS §30105
§30105. Restriction on recovery by non-citizens and non-resident aliens for incidents in water of other countries
Definition. In this section, the term “continental shelf” has the meaning given that term in article I of the 1958 Convention on the Continental Shelf.
Restriction. Except as provided in subsection (c), a civil action for maintenance and cure or for damages for personal injury or death may not be brought under a maritime law of the United States if:
- The individual suffering the injury or death was not a citizen or permanent resident alien of the United States at the time of the incident giving rise to the action;
- The incident occurred in the territorial waters or waters overlaying the continental shelf of a country other than the United States; and
- The individual suffering the injury or death was employed at the time of the incident by a person engaged in the exploration, development, or production of the offshore mineral or energy resources, including drilling, mapping, surveying, diving, pipelaying, maintaining, repairing, constructing, or transporting supplies, equipment, or personnel, but not including Transporting those resources by a vessel constructed or adapted primarily to carry oil in bulk in the cargo spaces.
- Nonapplication. Subsection (b) does not apply if the individual bringing the action establishes that a remedy is not available under the laws of the country asserting jurisdiction over the area in which the incident occurred; and the country in which the individual suffering the injury or death maintained citizenship or residency at the time of the incident
- 46 USCS §30106
- §30106. Time limit on bringing maritime action for personal injury or death.
- Except as otherwise provided by law, a civil action for damages for personal injury or death arising out of a maritime tort must be brought within 3 years after the cause of action arose.