Jones Act – Negligence – Vicarious Liability

269. Generally

Jones Act (46 USCS Appx § 688) is applicable to American shipowner on grounds that it acted through agents who caused accident which killed one American seaman and injured another, since Jones Act incorporates standard of Federal Employers’ Liability Act (45 USCS § § 51 et seq.) which renders employer liable for injuries negligently inflicted upon employees by its “officers, agents, or employees.” Hopson v Texaco, Inc. (1966) 383 US 262, 15 L Ed 2d 740, 86 S Ct 765.

Shipowner is not liable for negligence of others unless such negligence creates unseaworthy condition. Neal v Lykes Bros. S.S. Co. (1962, CA5 Tex) 306 F2d 313.

Vessel owner may be held liable for dangerous condition caused by third party’s lengthy control over vessel. In re River Transp. Assocs. (1993, CA5 La) 5 F3d 97.

Mere fact that person causing injury to seaman was not officer or member of seaman’s vessel but was member of armed forces of United States will not exonerate United States and its general agent from liability under 46 USCS Appx § 688. De Witt v United States (1946, DC Wash) 67 F Supp 61.

270. Fellow servant’s negligence

Owner of vessel is not relieved from liability for providing unseaworthy appliance merely because unseaworthiness was attributable to negligence of fellow servants of seaman rather than to negligence of owner. Mahnich v Southern S.S. Co. (1944) 321 US 96, 88 L Ed 561, 64 S Ct 455, 1944 AMC 1.

46 USCS Appx § 688 did not change rule of shipowner’s liability to member of crew injured by another member’s negligence, without regard to their relationship imposed by maritime law. Payne v Jacksonville Forwarding Co. (1923, CA5 Fla) 290 F 936, 1923 AMC 524.

Shipowner who provides unseaworthy vessel is not relieved of liability because unseaworthiness is attributable to negligence of fellow servant of injured person rather than to shipowner’s negligence. Marchese v Moore-McCormack Lines, Inc. (1975, CA2 NY) 525 F2d 831.

Shipowner owes to seamen employed on its vessels absolute, nondelegable duty to provide seaworthy vessel; ship can be unseaworthy by reason of defective personnel as well as by reason of defective gear or leaky hull, but not every transitory occurrence of misbehavior on part of fellow seamen can support finding of breach of warranty of seaworthiness; to be actionable, plaintiff’s injuries must have been caused by condition of ship. Harbin v Interlake S.S. Co. (1978, CA6 Ohio) 570 F2d 99, 2 Fed Rules Evid Serv 945, cert den 437 US 905, 57 L Ed 2d 1135, 98 S Ct 3091, 98 S Ct 3092.

Negligence of subordinate of master of vessel is not imputed to master for purposes of Jones Act claim (46 USCS Appx § 688). Johannessen v Gulf Trading & Transp. Co. (1980, CA2) 633 F2d 653.

Fact that injury was caused by officer or fellow servant is no defense to action under 46 USCS Appx § 688. Hansen v United States (1926, DC Ga) 12 F2d 321.

Fellow servant rule is not available to steamship owner in libel against it by stevedore employed by it who was injured while transferring cargo from barge to steamship. The Tampico (1942, DC NY) 45 F Supp 174, 1942 AMC 955.

Negligence of fellow seaman cannot be alleged where injured seaman brings suit in admiralty against ship without benefit of 46 USCS Appx § 688. Platt v Chesapeake & O. R. Co. (1948, DC Ohio) 82 F Supp 968.

Seaman may recover for injuries inflicted by equipment which is defective due to negligence, or by negligent actions of fellow crewman or officers, or other agents of employer. Puamier v Barge BT 1793 (1974, ED Va) 395 F Supp 1019, 17 UCCRS 745.

271. –Relationship of 46 USCS Appx § 688 to fellow servant rule

46 USCS Appx § 688 abrogates fellow servant rule. Jamison v Encarnacion (1930) 281 US 635, 74 L Ed 1082, 50 S Ct 440.

One who has elected to sue under state employers’ liability law cannot urge abrogation of fellow servant rule in 46 USCS Appx § 688. Van Norden v Chas. R. McCormick Lumber Co. (1927, CA9 Or) 17 F2d 568, 1927 AMC 514, cert den 274 US 758, 71 L Ed 1337, 47 S Ct 768.

Under old law seaman could not recover, except for maintenance and cure, for injury sustained through negligence of another crew member; but under Jones Act (46 USCS Appx § 688), fellow servant rule is abrogated by virtue of 45 USCS § 54 incorporated by reference in § 688. Becker v Waterman S.S. Corp. (1950, CA2 NY) 179 F2d 713.

272. –Scope of employment or authority

Where shipowner is under no duty to provide safe means of transportation between ship and any place of amusement crew members desire to visit while on shore leave in vessel’s home port, shipowner is not liable under 46 USCS Appx § 688, for negligence, if any, of fellow seamen in renting and operating car for their private pleasure while on shore leave. Thurnau v Alcoa S.S. Co. (1956, CA2 NY) 229 F2d 73, cert den 351 US 925, 100 L Ed 1455, 76 S Ct 783.

Shipowner may not be held liable under 46 USCS Appx § 688 unless particular act performed negligently was also in scope of employment of negligent employee. Trost v American Hawaiian S.S. Co. (1963, CA2 NY) 324 F2d 225, cert den 376 US 963, 11 L Ed 2d 981, 84 S Ct 1125.

Notwithstanding abrogation of common law fellow servant rule, master is not liable for injuries resulting from unauthorized act of fellow employee. Re Southern Pac. Co. (1928, DC NY) 30 F2d 723, 1928 AMC 901, affd (CA2 NY) 30 F2d 725, 1929 AMC 1789.

Even though both members of crew were in course of employment while ashore, their action in sparring with each other was not in furtherance of ship’s business and negligence of fellow servant, if any, toward other seamen would not imputed to shipowner for purposes of recovery under 46 USCS Appx § 688. Walker v Sinclair Refining Co. (1971, ED Pa) 331 F Supp 408.

Employer is liable for acts of his employees done within scope of their employment, notwithstanding that they are done in violation of rules and orders or instructions; master is not liable under 46 USCS Appx § 688 for injury to seaman arising from negligence of servant acting beyond scope of his employment. Adams v American President Lines, Ltd. (1944) 23 Cal 2d 681, 146 P2d 1.

273. Superior’s negligence

In action for injuries to plaintiff while engaged as stevedore in cleaning inside of defendant’s ship, declaration of second mate that for at least two days before accident happened, very gang on which plaintiff was working had been using battens identical to plaintiff’s when he fell, but that he, second mate, did not know of this use, justified finding defendant chargeable with notice of it and with duty to provide against it. Basso v Palmer (1943, CA2 NY) 138 F2d 914.

If officers choose to continue to employ man who is known or should be known by them to be source of peril to those who sail with him, when measures which might reasonably be expected to prevent resulting injury are not or cannot be taken, resulting injury to member of crew is one for which person injured may recover under 46 USCS Appx § 688. Kyriakos v Goulandris (1945, CA2 NY) 151 F2d 132.

Captain’s actions in attempting to salvage disabled vessel were within scope of his authority, and vessel owner was vicariously liable under 46 USCS Appx § 688 where captain’s negligence in conducting salvage operation resulted in injury to crewman. Allen v Seacoast Products, Inc. (1980, CA5 La) 623 F2d 355, 6 Fed Rules Evid Serv 536 (disagreed with by multiple cases as stated in Nix v Kansas City S. R. Co. (CA5 Tex) 776 F2d 510).

Because salvage of both life and property is so encouraged that it is practically mariner’s duty, captain owes his crew paternalistic duty to protect them and where seaman was unaware of stress on lines, while captain most certainly was aware, and it would have been simple matter for captain to warn seaman of danger, captain breaches his broad paternalistic duty to protect seaman. Allen v Seacoast Products, Inc. (1980, CA5 La) 623 F2d 355, 6 Fed Rules Evid Serv 536 (disagreed with by multiple cases as stated in Nix v Kansas City S. R. Co. (CA5 Tex) 776 F2d 510).

Tolerance by officer of cruel, brutal, and inhuman nature among crew constitutes negligence on part of vessel’s operators. Nowery v Smith (1946, DC Pa) 69 F Supp 755, 1946 AMC 1702, affd (CA3 Pa) 161 F2d 732, 1947 AMC 756.

Owner of fishing boat was liable under 46 USCS Appx § 688 for negligence of captain. Glaser v Katalinich (1932) 169 Wash 133, 13 P2d 468.

274. Independent contractor’s negligence

46 USCS Appx § 688 authorizes recovery for injuries or death of seaman as result of automobile accident which occurred when, due to negligence of its driver, local taxicab hired by ship’s master in foreign port to transport seaman to United States consul after he had been incapacitated by illness, collided with truck. Hopson v Texaco, Inc. (1966) 383 US 262, 15 L Ed 2d 740, 86 S Ct 765.

While shipowner who lets construction of engine to independent contractor may not be responsible under doctrine of respondeat superior for negligence of such contractor or his servants, where owner supervises work and knows, or should know because of such supervision, that engine is inherently dangerous, owner is not freed of responsibility for its condition. Kunschman v United States (1932, CA2 NY) 54 F2d 987.

When shipowner delegates to outside contractor job of making defective ladder seaworthy, shipowner becomes chargeable with that contractor’s negligence, if any, in failing to do work properly. Dixon v United States (1955, CA2 NY) 219 F2d 10.

Where seaman was returning to his vessel in transportation furnished by vessel owner and was thrown from pickup truck and suffered injuries, vessel owner was not guilty of any negligent acts or omissions which proximately caused seaman’s injury as vessel owner did not own pickup truck in question and did not exercise any control over driver. Broussard v Marine Transport Lines, Inc. (1974, ED Tex) 369 F Supp 103.

In personal injury action by relief captain on charter vessel against vessel, plaintiff is exempted from contributory negligence doctrine, where he was injured while assisting independent contractor in modifying off-shore mooring at direction of vessel’s captain in order to increase capacity of dive site and increase business, and where contractor was charged with supervising diving activities, because since plaintiff was injured while he and contractor were working for vessel, in furtherance of vessel’s operational activities, vessel is responsible for contractor’s statutory and regulatory violations. Brooker v Cleghorn (1994, DC Hawaii) 907 F Supp 1406, 1995 AMC 2161.

275. –Employees of contractor

Steamship company was not liable under 46 USCS Appx § 688 for injury to longshoreman through negligence of winchman employed by charterer of vessel. Labbee v Travenot S.S. Co. (1930, CA2 NY) 37 F2d 52, 1930 AMC 211, cert den 281 US 754, 74 L Ed 1164, 50 S Ct 408.

Shipowner is not liable for negligence of longshoremen acting as servants or employees of independent stevedoring contractor, unless such negligence creates unseaworthy condition. Neal v Lykes Bros. S.S. Co. (1962, CA5 Tex) 306 F2d 313.