Jones Act – Defenses – Seaman's Conduct in Particular Circumstances

366. Assaults

Seaman injured while attempting to take knife from drunken sailor to protect another sailor was not guilty of contributory negligence. Jensen v United States War Shipping Administration (1949, DC Pa) 88 F Supp 542, 1949 AMC 1928, affd (CA3 Pa) 184 F2d 72, 1950 AMC 1797.

367. Doors

Seaman did not assume risk of injury to his fingers from closing of door lacking proper doorstop, since assumption of risk does not apply where improper appliance is furnished to seaman during voyage. Howarth v United States Shipping Board Emergency Fleet Corp. (1928, CA2 NY) 24 F2d 374.

Libellant, chief steward in charge of gang of four subordinates shifting ship’s stores from one storeroom to another on lower deck, could not recover damages for injuries sustained when iron door of storeroom swayed and hit his left hip where his negligence is not securing door was sole cause of accident. Witt v United States (1949, DC NY) 82 F Supp 696.

368. Emergencies

Deck hand was not guilty of such negligence as barred recovery by taking reasonable risk in act of saving his master’s property. Re Lee Transit Corp. (1930, CA2 NY) 37 F2d 67, 1930 AMC 297.

That seaman acted in emergency situation not caused by his own antecedent negligence is factor to be considered in determining whether his conduct is free from contributory negligence. Asaro v Parisi (1962, CA1 Mass) 297 F2d 859, cert den 370 US 904, 8 L Ed 2d 400, 82 S Ct 1250.

Mere possibility that plaintiff was contributorily negligent would not bar his recovery under 46 USCS Appx § 688 where plaintiff’s efforts to free certain cable was normal response to stimulus of dangerous situation created by defendant. Sanford Bros. Boats, Inc. v Vidrine (1969, CA5 La) 412 F2d 958.

In rescue situations correct standard in determining contributory negligence of rescuer is wanton and reckless both in perceiving need for rescue and in undertaking it. Furka v Great Lakes Dredge & Dock Co. (1987, CA4 Md) 824 F2d 330.

Method adopted by engineer on watch in holding down throttle by hand did not defeat recovery for injury to his face by flying up of throttle handle where engineer was acting in emergency situation. Adders v United States (1933, DC NY) 5 F Supp 457, affd (CA2 NY) 70 F2d 371, 1934 AMC 511.

369. Engines and machinery

Seaman could not recover damages for loss of thumb caught between line and spool where he negligently stood too close to operating machinery and negligently placed his hand in dangerous position. Heder v United States (1948, CA9 Cal) 167 F2d 899.

In action by seaman claiming he was injured when “cleanout” pipe rolled, crushing tip of his left toe, while he and other crew members were changing flange in main pump of dredge, trial court erred in instructing jury, over proper objection, that seaman was required to use ordinary care under circumstances for his own safety at time of accident, rather than instructing on proper standard, which is slight care. Brooks v Great Lakes Dredge-Dock Co. (1984, CA5 La) 754 F2d 536, on reh, mod (CA5 La) 754 F2d 539.

Effort of seaman to dodge between grab bucket being hoisted from deck and boom constituted contributory negligence reducing damages. Olsen v Maine Coal & Dock Co. (1930, DC Me) 43 F2d 220, 1930 AMC 1144.

Member of crew of fishing boat who insisted on boat leaving for fishing trip before winch gears were covered did not assume risk of injury occurring after trip was completed. The Lorenzo Scola (1931, DC Mass) 1931 AMC 1607.

Seaman was guilty of negligence contributing to his injury in leaving cab of caterpillar lift with its engines in full operation while lift and shovel were descending to deck. Barge v United States (1947, DC Cal) 72 F Supp 328.

Accident and injuries sustained by plaintiff as result of hand becoming entangled in generator belt of unguarded generator resulted from combined and concurring negligence of plaintiff’s employer and that of plaintiff himself, and plaintiff’s contributory negligence in not using ordinary care or keeping proper lookout for his own safety when entering engine room contributed to his accident and injuries. Theall v Sam Carline, Inc. (1963, WD La) 241 F Supp 748.

Chief engineer assumed risk of injury from relief valve on cylinder in boiler room where danger was obvious. Patterson v Cleveland Cliffs Iron Co. (1930, Cuyahoga Co) 37 Ohio App 316, 9 Ohio L Abs 207, 174 NE 592.

370. Explosions

Illiterate longshoreman does not assume risk of injury by dust explosion in hold of ship loading pitch caused by either sparks from electric trimmer or flames from open torches, both furnished by stevedoring company. Cornec v Baltimore & O. R. Co. (1931, CA4 Md) 48 F2d 497, 1931 AMC 721, cert den 284 US 621, 76 L Ed 530, 52 S Ct 9.

Plaintiff injured by turbine explosion caused solely by plaintiff’s negligent actions could not recover. Sotell v Maritime Overseas, Inc. (1973, CA2 NY) 474 F2d 794.

Seaman killed by explosion of gun powder was not contributorily negligent where there was no evidence to show that he had knowledge or opportunity to observe that powder had leaked from case onto deck. Petition of Clyde S. S. Co. (1926, DC NY) 16 F2d 930, 1926 AMC 1577, affd (CA2 NY) 18 F2d 1015, cert den 275 US 529, 72 L Ed 409, 48 S Ct 21.

Seventeen-year-old seaman was not entitled to recover for injury incurred as result of explosion of German flare he had brought on board in direct violation of orders as result of unauthorized trip to beachhead. Chandler v United States (1949, DC NY) 94 F Supp 581, 1949 AMC 1167, affd (CA2) 185 F2d 1019.

Plaintiff seaman who had no education, was of low intelligence and had never been instructed that starting bilge pumps belows decks was unsafe, was not at fault for explosion and fire arising from pumps’ operation. Sylve v E. W. Gravolet Canning Co. (1967, ED La) 278 F Supp 669.

In action for death of seaman caused by explosion of air tank, question of assumption of risk was for jury. 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.

371. Fellow servant’s negligence

Employee does not assume risk of injury from negligence of fellow employee in lowering heavy objects into hold of vessel. Anderson v Matson Navigation Co. (1932) 125 Cal App 447, 13 P2d 1041.

Stevedore did not assume risk of injury from negligence of fellow servant, which negligence was not open and apparent to servant injured. Ranstrom v International Stevedoring Co. (1929) 152 Wash 332, 277 P 992.

372. Gangways

In action under Jones Act and unseaworthiness doctrine by vessel employee to recover for injuries sustained when she slipped and broke her ankle in debarking from vessel onto dock by means of metal ramp, evidence was sufficient to support jury verdict finding that vessel owner was not negligent, that vessel was not unseaworthy, and that employee was “contributorily negligent,” where, inter alia, ramp had nonskid tread and was used by crew members to go to and from vessel, where, although ramp was at slant, it could be readily negotiated, where there was no evidence of any slippery substance on ramp, it was adequately lighted, and where employee testified she did not know why she had fallen except that she was wearing “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.

Second engineer assumed risk of injury from slipping on gangway. Fleischman v United States (1934, DC NY) 1934 AMC 641.

Crew member on shore leave fell into water between his vessel and wharf where vessel was docked, and there was no evidence that vessel was originally tied to wharf too loosely or in any but entirely proper manner, or that extension part of gangway was unprovided with railing or hand line; therefore, he was not entitled to recover damages for personal injuries: if respondent was negligent, seaman assumed risk of danger, since he was under no compulsion to come aboard. Paul v United States (1943, DC La) 54 F Supp 60.

373. Hatches

Injury to longshoreman was due to his own inattention in stepping into hatchway while engaged in removing covering from hatch. Seas Shipping Co. v Ward (1927, CA9 Or) 22 F2d 251, 1928 AMC 141.

Experienced seaman is charged with knowledge that it is dangerous to walk upon hatch covers, unless all boards are in place and securely fastened. Carlson v United States (1934, CA5 La) 71 F2d 116, 1934 AMC 841.

In action for death of stevedore who fell through hatch on defendant’s vessel, alleged contributory negligence on part of deceased as well as question as to whether defendant had seen that hatch covers which would not get out of position when stepped on were placed on hatch, and whether there had been proper inspection to discover defect, during two days which intervened between completion of repairs by another company and occurrence, were matters for jury. Greco v Lorentzen (1943, CA2 NY) 139 F2d 113, 1944 AMC 65.

Fireman injured by fall through floor of engine room due to steel plate slipping out of position did not assume risk of such injury as incidental to his employment. The Gaston (1932, DC Tex) 1932 AMC 717.

Young seaman in obeying orders of officers in charge, did not assume risk in falling into hatchway on account of slippery deck. Becker S.S. Co. v Snyder (1929, Cuyahoga Co) 31 Ohio App 379, 166 NE 645, cert dismd 280 US 615, 74 L Ed 656, 50 S Ct 152.

Employee did not assume risk of injury from absence of guard along hatchway coaming, though employee might have walked on lumber negligently piled close to coaming. Engfors v Nelson S.S. Co. (1929) 131 Or 108, 280 P 337.

Experienced longshoreman assumed risk of injury in working on hatch where danger was open, plain and necessarily incident to work. Hartford v Northwestern Stevedoring Co. (1928) 148 Wash 501, 269 P 831.

374. Intoxication

In case in which fireman sued for damages under 46 USCS Appx § 688 and plaintiff introduced evidence that he was injured while coming on board at request of superior, and evidence by defendant was that plaintiff was injured as result of intoxicated condition, court properly denied motion by defendant for directed verdict. Casey v Seas Shipping Co. (1949, CA2 NY) 178 F2d 360, 1950 AMC 248.

In action under 46 USCS Appx § 688 to recover for injuries, intoxication, where it contributes to seaman’s injury, constitutes contributory negligence on his part and operates only to mitigate damages. Bentley v Albatross S.S. Co. (1953, CA3 Pa) 203 F2d 270.

Intoxication of seaman does not work forfeiture of claim under 46 USCS Appx § 688, but rather lessens recoverable damages, unless seaman’s negligent intoxication is sole cause of injuries. 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.

Owner was exonerated from all liability where drownings of seamen were caused solely by their helpless state due to intoxication. Petition of Atlass (1965, CA7 Ill) 350 F2d 592, cert den 382 US 988, 15 L Ed 2d 476, 86 S Ct 551, reh den 383 US 923, 15 L Ed 2d 679, 86 S Ct 884 and reh den 384 US 914, 16 L Ed 2d 368, 86 S Ct 1336 and cert den 382 US 988, 15 L Ed 2d 476, 86 S Ct 556, reh den 383 US 923, 15 L Ed 2d 679, 86 S Ct 884 and reh den 384 US 914, 16 L Ed 2d 368, 86 S Ct 1336.

That decedent seaman was drunk at time of his death should be considered in light of fact that he, as well as other crew members, had been supplied with intoxicants by master of ship who failed to exercise any supervisory control over its use; for this, vessel must bear at least part of fault. Reyes v Vantage S.S. Co. (1977, CA5 Tex) 558 F2d 238, on reh (CA5 Tex) 609 F2d 140, later app (CA5 Tex) 672 F2d 556, later proceeding (SD Tex) 575 F Supp 926, withdrawn.

In action by seaman against operators of vessel to recover for personal injuries sustained by him while on shore leave in fist fight with chief engineer in barroom, whether words by seaman in addressing chief engineer of vessel constituted provocation for physical assault was question for jury as was question of his sustaining injuries complained of by reason of his own willful intoxication. Nowery v Smith (1946, DC Pa) 69 F Supp 755, 1946 AMC 1702, affd (CA3 Pa) 161 F2d 732, 1947 AMC 756.

In action under 46 USCS Appx § 688, to recover for injuries to wrist sustained following manacling as attempt to restrain seaman in state of intoxication, drunken state did not bar damages; if intoxication had been contributing cause of injuries sustained, then recovery would be reduced. Cruz v American Export Isbrandtsen Lines, Inc. (1970, SD NY) 310 F Supp 1364.

Mere showing that plaintiff had imbibed alcoholic beverages while on shore shortly before accident for which he sued, does not establish intoxication of plaintiff so as to bar his right to recover. Vandinter v American S.S. Co. (1975, WD NY) 387 F Supp 989.

In action by seaman employed to work on fishing boat for injuries sustained when he fell off dock ladder while boarding boat, against shipowner for injuries resulting from unseaworthiness of vessel and from negligence of shipowner under Jones Act, there was sufficient evidence to support jury’s finding that seaman’s intoxication was sole cause of his injury where seaman testified he had at least three beers that evening, where he testified that he was not actually on ladder when he fell, but his feet were still on dock, and that as he grabbed top rung of ladder, while standing on dock, he fell, and where jurors had opportunity to examine dock ladder for themselves. Loof v Sanders (1984, Alaska) 686 P2d 1205.

In action to recover damages under 46 USCS Appx § 688, intoxication of seaman at time of injuries which resulted in his death would not be bar to recovery, but is contributory negligence which would serve only to reduce quantum of damages. Hocut v Insurance Co. of North America (1971, La App 3d Cir) 254 So 2d 108, cert den 260 La 411, 256 So 2d 292.

375. Ladders

Use of ladder by engineer with knowledge of defects would not permit recovery. O’Bryant v States S.S. Co. (1929, CA9 Cal) 36 F2d 305, 1930 AMC 50.

Sailor assumes risks incident to heavy wave passing over vessel and washing him from ladder which he ascended for safety. The Cricket (1934, CA9 Cal) 71 F2d 61, 1934 AMC 1035.

In suit to recover for injury received due to fall from ladder while working as able-bodied seaman, plaintiff can recover no damages where he was wholly at fault when he received his injury. Field v Waterman S.S. Corp. (1939, CA5 Ala) 104 F2d 849, 1939 AMC 1555.

Apportionment of fault and proportionate allowance of damages under comparative negligence rule was proper where injury sustained by libellant was due both to negligent failure of government to maintain safety rope along bulkhead and to negligence of libellant in stepping off ladder on wrong side. Desrochers v United States (1939, CA2 NY) 105 F2d 919, 1940 AMC 1392, cert den 308 US 519, 84 L Ed 441, 60 S Ct 180.

Seaman did not assume risk inherent in carrying out order of mate directing him to take two shovels up ladder at same time. Reskin v Minnesota-Atlantic Transit Co. (1939, CA2 NY) 107 F2d 743, 1940 AMC 111.

Short ladder held by deckhand to assist cook in leaving tug on which they were employed was as appropriate means of effecting his purpose as longer ladder would have been, and cook cannot be deemed to have chosen unsafe appliance in preference to safe one so as to justify conclusion that he assumed risk. Wong Bar v Suburban Petroleum Transport, Inc. (1941, CA2 NY) 119 F2d 745, 1941 AMC 844.

Master mariner, falling from ladder safety of which he could have determined for himself, assumed risk and was guilty of contributory negligence. McCarthy v United States (1934, DC NY) 1934 AMC 939.

Even if libellant fell when metal cleat supporting cargo battens broke, he could not recover from owner of vessel, since cargo battens were not intended to be used as ladders. Sulsenti v Cadogan S.S. Co. (1943, DC NY) 54 F Supp 570.

376. Lighting

Seaman, who fell overboard at night assumed risk involved in moving about without searchlight. Martin v Lower Coast Const. Co. (1927, CA5 La) 16 F2d 835.

In action by master of fishing boat for injuries sustained in fall on slippery deck at night after deck lights had failed due to loss of electric power, his failure, in due performance of his supervisory responsibilities as master to see that engineer got electric power restored would be but species of contributory fault which would go only in diminution of damages instead of being complete bar to action. Boat Dagny, Inc. v Todd (1955, CA1 Mass) 224 F2d 208.

Stand-by seaman who fell through trap door while approaching mate in master’s saloon to obtain pass to go ashore, was allowed to recover but half damages, since inadequate lighting put him under duty to proceed carefully in unfamiliar quarters. Dervishoglu v Boyazides (1942, DC NY) 44 F Supp 385, 1942 AMC 556.

377. Lines and rigging

Seaman using rope under orders did not assume risk of injury. Masjulis v United States Shipping Board Emergency Fleet Corp. (1929, CA2 NY) 31 F2d 284, 1929 AMC 740.

Employee giving signals to winchman was not negligent in standing within reach of swing of draft. W. J. McCahan Sugar Refining & Molasses Co. v Stoffel (1930, CA3 Pa) 41 F2d 651, 1930 AMC 1482.

Chambermaid, who insisted on running on single gunwale of barge instead of on double gunwale, though warned not to do so, was not entitled to recover damages for negligence, when injured by line, since only negligence was that of chambermaid. Reabe v United States Steel Co. (1952, CA3 Pa) 194 F2d 398.

Mere possibility that plaintiff was contributorily negligent would not bar his recovery under 46 USCS Appx § 688 where plaintiff’s efforts to free certain cable was normal response to stimulus of dangerous situation created by defendant. Sanford Bros. Boats, Inc. v Vidrine (1969, CA5 La) 412 F2d 958, 13 FR Serv 2d 1116.

In action by master to recover for injuries, under 46 USCS Appx § 688, master was not contributorily negligent in using hands to untangle line after giving order to crew member to start winch, since use of hands to untangle line was not negligence. Williams v Brasea, Inc. (1974, CA5 Tex) 497 F2d 67, mod on other grounds and reh den (CA5 Tex) 513 F2d 301, cert den 423 US 906, 46 L Ed 2d 136, 96 S Ct 207 and later app (CA5 Tex) 549 F2d 977.

Seaman’s failure to seek or obtain towline of adequate length did not constitute contributory negligence in absence of showing there existed safe alternative available to him of which he was aware or should have been aware. Ceja v Mike Hooks, Inc. (1982, CA5 La) 690 F2d 1191.

Seaman assumed risk of injury to ankle while passing over rope coiled on afterdeck. The Nantucket (1933, DC Mass) 1933 AMC 473.

Negligent owner of river tugboat is 80 percent liable under Jones Act and contributorily negligent seaman whose back was injured carrying cable on tugboat is 20 percent responsible where devices left attached to cable by owner snagged and prevented cable from rolling off of stack, seaman freed snag by lifting cable straight up, both owner and seaman had several days to inspect cables and evaluate best way to move them, and seaman was experienced, did not ask for assistance in moving cables, was familiar with alternative method of lifting cable with his shoulder, and, due to prior back injury, was in best position to assess his lifting ability. Burden v Evansville Materials, Inc. (1986, WD Ky) 636 F Supp 1022.

Seaman injured when, without order, he speeded up lift being used in heaving on board one of ship’s mooring lines, did not assume risk of action where proximate cause of injury was improper securing of line to winch by defendant’s employees, inasmuch as he was endeavoring to carry out order and had right to assume line was properly placed. Paulsen v McDuffie (1935) 4 Cal 2d 111, 47 P2d 709.

Seaman could not assume risk of working with frayed cable on steam winch even though he knew it was frayed. Paulsen v McDuffie (1935) 4 Cal 2d 111, 47 P2d 709.

Decedent who moved from place of safety to place of danger, in stepping from landing to ladder while jet line was operating where danger was obvious assumed risk. McClain v Kansas City Bridge Co. (1938) 232 Mo App 1189, 116 SW2d 253.

Longshoreman working under ship’s tackles did not assume risk of patent defect in cargo ring. The Georgine (1929, Wash) 1929 AMC 488.

378. Loading and unloading operations

Extraordinary risk created by lifting draft suddenly without signal was not assumed by longshoreman engaged in unloading cargo. W. J. McCahan Sugar Refining & Molasses Co. v Stoffel (1930, CA3 Pa) 41 F2d 651, 1930 AMC 1482.

Seaman did not assume risk of injury from dropping of wheel of jitney truck loaded with sacks of peas into hole in hold deck where danger was unknown to him. W. R. Chamberlin & Co. v Rylander (1934, CA9 Cal) 68 F2d 362, 1934 AMC 192.

Seaman, injured when draft of cargo, which had been swung over square of main deck hatch, carried away and crashed through hatchway covering on ‘tween deck, did not assume risk and was entitled to recover. Re Luckenbach S.S. Co. (1925, DC NY) 16 F2d 168, affd (CA2 NY) 16 F2d 171.

Seamen did not assume risk of injury from negligent manner of loading logs into vessel. The Panzsay (1933, DC NY) 1933 AMC 472.

Foreman loading ship did not assume risk of negligence of hatch tender in sending down load with loose plank without giving special warning. Rasmussen v Twin Harbor Stevedoring & Tug Co. (1928) 147 Wash 260, 265 P 1085.

379. Pre-existing disability of seaman

Person who is “seaman” and suffers injury in course of his “employment” as seaman, within ordinary meaning of those words, is not barred from suit under 46 USCS Appx § 688 because he concealed fact that he had filed prior claims for injuries and illnesses against previous employers, in applying for employment. Gypsum Carrier, Inc. v Handelsman (1962, CA9 Cal) 307 F2d 525, 4 ALR3d 517, 1963 AMC 175.

If seaman knowingly exposes himself to conditions of employment while aware of illness or disability which makes those conditions unsafe to him, or where seaman has possibility of securing relief from unsafe conditions by informing his superiors of them, but continues to work without doing so, he may be found to be contributorily negligent. Savoie v Otto Candies, Inc. (1982, CA5 La) 692 F2d 363, 12 Fed Rules Evid Serve 269.

In action to recover damages for personal injuries under 46 USCS Appx § 688 and for unseaworthiness defendant could not set up as defense that plaintiff had obtained his employment by fraud, in that he knew that he was physically unfit and hence was not bona fide crewman. Spinks v United States Lines Co. (1963, SD NY) 223 F Supp 371, 1963 AMC 2128.

Mere existence and nondisclosure of pre-existing disability does not of itself amount to contributory negligence but rather there must be causal link between such failure and harm eventually incurred; seaman is not expected or required to complain and is not contributorily negligent for failing to report obvious physical disabilities. Curry v United States (1971, ND Cal) 327 F Supp 155, supp op (ND Cal) 338 F Supp 1219.

Seaman in order to recover for aggravation of condition under 46 USCS Appx § 688 need not reveal every possible physical infirmity, no matter how minor or how dormant; rather, test is whether seaman, in good faith, believed himself fit for duty when he signed aboard for duty. Curry v United States (1971, ND Cal) 327 F Supp 155, supp op (ND Cal) 338 F Supp 1219.

Contributory negligence is applied to mitigate damages in actions commenced under Jones Act (46 USCS Appx § 688), and is question for jury; failure to disclose illness to employer may have amounted to contributory negligence. Smith v Cameron Crews, Inc. (1977, La App 3d Cir) 348 So 2d 179, cert den (La) 351 So 2d 169.

380. –Particular illnesses

Average layman would not attach disabling significance to prostate enlargement; hence, failure of sailor to disclose such condition to his prospective captain did not bar his recovery for ensuing disability. Lindquist v Dilkes (1942, CA3 Pa) 127 F2d 21 (ovrld on other grounds Jordine v Walling (CA3 Pa) 185 F2d 662).

In suit by seaman based on alleged negligence and unseaworthiness, seaman did not have duty to disclose to employer prior operation for removal of adhesions, since this duty applies only to maintenance and cure and does not affect issue of negligence or unseaworthiness. Lipscomb v Groves (1951, CA3 Pa) 187 F2d 40, 1957 AMC 452.

Employee’s negligence in riding motorcycle after suffering recurrent blackouts was not intervening efficient cause breaking chain of proximate causation in case in which jury found that employee had been injured, in falling from platform while working on ship, due to negligence of defendant, which injury left him subject to recurrent blackouts. Ammar v American Export Lines, Inc. (1964, CA2 NY) 326 F2d 955, cert den 379 US 824, 13 L Ed 2d 34, 85 S Ct 48, reh den 379 US 985, 13 L Ed 2d 579, 85 S Ct 640.

Trial court did not err in submitting to jury issue of contributory negligence with respect to plaintiff’s claim that her pulmonary emphysema was aggravated by defendant’s failure to furnish her maintenance and cure and instead continued to employ her at work beyond her capacity. Mroz v Dravo Corp. (1970, CA3 Pa) 429 F2d 1156.

Plaintiff under 46 USCS Appx § 688 is not contributorily negligent for failing to self-diagnose his heart attack and failing to have stopped working where ship’s doctor did not disclose plaintiff’s illness or instruct him not to work. Szumlicz v Norwegian America Line, Inc. (1983, CA11 Fla) 698 F2d 1192.

Seaman was guilty of contributory negligence in action for death under 46 USCS Appx § 688 for injuries sustained onboard vessel in his capacity as steward and cook, given his prior stroke, breathing difficulties, earlier hospitalization and employment with defendant without medical care or service. Potter Title & Trust Co. v Ohio Barge Line, Inc. (1948, DC Pa) 81 F Supp 108, revd on other grounds (CA3 Pa) 184 F2d 432, cert den 340 US 955, 95 L Ed 689, 71 S Ct 567.

381. Protective devices and safety equipment

Marine fire and boiler man could not recover for injuries caused from fall while he was repairing relief valves over boilers of vessel where he chose to work over rail which was installed for entirely different purpose and did not install convenient safety rigging. Vileski v Pacific-Atlantic S.S. Co. (1947, CA9 Cal) 163 F2d 553.

Experienced crewboat skipper who drowned in rough seas was aware or should have been aware that circumstances required use of lifejacket, and failure to wear lifejacket constituted negligence for which plaintiff’s award will be reduced. Hebert v Otto Candies, Inc. (1975, ED La) 402 F Supp 503.

382. –Goggles

Employee assumed risk of making repairs without use of goggles furnished. The Sarcoxie (1935, DC NY) 1935 AMC 1011.

Failure of seaman to wear goggles while chipping rust would only affect amount of recovery and would not bar recovery. Haddock v North Atlantic & Gulf S.S. Co. (1948, DC Md) 81 F Supp 421.

Seaman engaged in removing alemite fittings, who failed to make effort to locate goggles and proper tools which were available, was negligent, and such negligence would permit reduction of damages. Pearson v Tide Water Associated Oil Co. (1950, Cal App) 223 P2d 669, hear gr by sup ct, app dismd.

383. Slippery footing

Seaman returning to his room while off duty and not under orders assumed risk of injury by slipping on pool of oil left on deck where he knew danger and could have taken safer route. Holm v Cities Service Transp. Co. (1932, CA2 NY) 60 F2d 721, 1932 AMC 1188.

Accident of officer in falling into tank was due to negligence of engineer in failing to clean oil out of tank, and officer is entitled to recover, though his own negligence in failing to see oil on which he slipped may reduce amount of his damages. Becker v Waterman S.S. Corp. (1950, CA2 NY) 179 F2d 713.

Seaman who allegedly slipped, fell, and was injured because of water on floor of his sleeping quarters, negligently caused injury by failing to close porthole. 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.

In case in which plaintiff slipped on diesel fuel which had spilled from drums during loading operation, trial judge did not err in concluding that plaintiff was 30 percent at fault and in reducing his damages by that amount where plaintiff and coworkers previously had spilled diesel fuel on deck. Kelloch v S & H Subwater Salvage, Inc. (1973, CA5 La) 473 F2d 767, on remand (ED La) 397 F Supp 738, later op (ED La) 397 F Supp 742.

Chief mate whose duties included responsibility for safe working conditions on ship was not barred from recovery for injuries sustained when he slipped on patch of diesel oil while inspecting area of oil spill which he had ordered cleaned up since rather than in breach of his duty to maintain safe working conditions he was in process of carrying out that responsibility when accident occurred. Stanworth v American Stern Trawlers, Inc. (1975, CA9 Wash) 523 F2d 46.

Jury’s finding that deckhand injured in fall on slippery deck was not contributorily negligent was supported by evidence that deckhand did not have extensive experience, was expected to work regardless of slippery conditions, and did not see grain because he backed up into it. Dempsey v Mac Towing, Inc. (1989, CA11 Ala) 876 F2d 1538, 13 FR Serv 3d 1342.

Fact that plaintiff may have had equal knowledge of or opportunity of knowing with master dangerous condition of deck at time command was complied with would not absolve master from liability for his own negligence, since seaman has obligation to obey orders of his superior so as to deprive him of any freedom of action which forms basis of doctrine of assumption of risk. Sanders v South Atlantic S.S. Co. (1934) 49 Ga App 716, 176 SE 529.

Longshoremen continuing work on greasy floor after calling out to man at gangway that grease spots should be covered, assumed risk, and mere statement by gangwayman that he would notify boss and that sawdust would be supplied was not promise binding on employer. Yaconi v Brady & Gioe, Inc. (1927) 246 NY 300, 158 NE 876, cert den 276 US 636, 72 L Ed 744, 48 S Ct 421.

Seaman did not contribute to his own injury in slipping and falling in oil on deck where he earlier observed such oil as it was not his duty to remove oil, he was not instructed to do so and he had every reason to believe that unsafe condition would be remedied by defendant. Petressen v American President Lines, Ltd. (1944, City Ct) 48 NYS2d 757 (city court of New York).

Young seaman in obeying orders of officers in charge, did not assume risk in falling into hatchway on account of slippery deck. Becker S.S. Co. v Snyder (1929, Cuyahoga Co) 31 Ohio App 379, 166 NE 645, cert dismd 280 US 615, 74 L Ed 656, 50 S Ct 152.

Absent evidence that it was plaintiff’s primary responsibility to fuel vessel and clean up spilled fuel, contributory negligence of plaintiff injured by slipping on vessel resulting from presence of oil on deck of vessel will not be taken into account by jury in arriving at amount of plaintiff’s damages. Beauchamp v Sause Bros. Ocean Towing Co. (1973) 267 Or 106, 514 P2d 1346.

384. –Obstructed footing

Since plaintiff’s failure to order roof of housing to be cleared of loose boards underfoot was underlying cause of his injuries in falling from roof in attempting to top boom, damages must be apportioned. Lewis v United States Nav. Co. (1944, DC NY) 57 F Supp 652.

Coal passer on car ferry did not assume risk of injury from negligent leaving of jackscrews in passageway when they normally were not kept in passageway when not in use. Russell v Pere Marquette R. Co. (1929) 245 Mich 624, 223 NW 230, cert den 279 US 864, 73 L Ed 1003, 49 S Ct 480.

Question of whether longshoreman assumed risk of injury from walking over uneven cotton bales was for jury. Buckley v Cunard S.S. Co. (1931) 233 App Div 361, 253 NYS 254.

385. Stairs, catwalks, and walkways

In suit by seaman to recover under 46 USCS Appx § 688 for injuries caused by defective step on which he stood to examine engine bearing, although he knew of defect and had free choice to avoid its use and to examine bearing without standing upon step, his assumption of risk did not bar recovery but might be considered in mitigation of damages. Socony-Vacuum Oil Co. v Smith (1939) 305 US 424, 83 L Ed 265, 59 S Ct 262, 1939 AMC 1.

Able seaman ordered to bring timbers from forehold of vessel in dry dock, who fell from beam to deck of hold, assumed risk in using such beam as short-cut. Hunt v Hobbs, Wall & Co. (1930, CA9 Cal) 42 F2d 437, 1930 AMC 1390.

Negligence and contributory negligence with respect to deck hand using walkway, instead of proceeding by safer course presented jury question. Southern R. Co. v Hermans (1930, CA4 Va) 44 F2d 366, 1931 AMC 175.

That other members of crew walked catwalk without getting hurt did not establish contributory negligence on part of seaman who fell from catwalk. Pollard v Seas Shipping Co. (1945, CA2 NY) 146 F2d 875, 1945 AMC 119.

Seaman was contributorily negligent in sustaining injury when his foot slipped from step as he was descending from crane onto deck of barge while he was looking at and talking to fellow employee as he proceeded to step down onto metal step. Scott v Fluor Ocean Services, Inc. (1974, CA5 La) 501 F2d 983.

That seaman, injured in fall down stairs of ship, knew of defective tread on step, did not prevent recovery, since danger was not so open and obvious as to put one of ordinary prudence upon his guard. The Apurimac (1925, DC Va) 7 F2d 741, 1925 AMC 604, mod (CA4 Va) 12 F2d 500, 1926 AMC 703.

Seaman assumed risk of falling while descending forecastle companionway. Leavy v Baymead (1936, DC Cal) 1936 AMC 312; Carroll v Baymead (1936, DC Cal) 1936 AMC 313.

Fishing vessel owner provided plank as catwalk on vessel, without proper safeguards, and member of crew suffered injury culminating in death therefrom; owner was guilty of failing to furnish safe appliance and decedent assumed no risk. Rouchleau v Silva (1950) 35 Cal 2d 355, 217 P2d 929.

386. Tools and equipment

Where plaintiff used appliance for purpose other than for which it was intended, with acquiescence of master, question of whether he assumed risk of so using it was for jury. Sporgeon v Mahoney (1926, CA9 Cal) 10 F2d 144.

Fireman at sea who tries to turn defective ventilator with pipe-length for leverage does not assume risk of pipe-length slipping off and injuring him. Ives v United States (1932, CA2 NY) 58 F2d 201, 1932 AMC 783.

Where aerial operator, while putting up his aerial on leaving port, as it was his duty to do, fell to his death, his contributory negligence, if any, could be considered only in mitigation of damages. Cleveland-Cliffs Iron Co. v Martini (1938, CA6 Ohio) 96 F2d 632, 1938 AMC 985, cert den 305 US 605, 83 L Ed 384, 59 S Ct 65.

Plaintiff may recover under 46 USCS Appx § 688 for injuries sustained while serving at sea where he was required to use defective paint spray gun without being furnished mask, since even though orders of chief officer required him to work with unsafe tools or under unsafe conditions, plaintiff was obliged to obey orders and did not assume any risk of obedience to orders. Darlington v National Bulk Carriers, Inc. (1946, CA2 NY) 157 F2d 817.

Where wiper on ship sued employer to recover for accidental injuries sustained when he struck his head against telephone booth and edge of switch box, employer was not negligent since equipment struck by seaman was normal equipment in normal place. Lake v Standard Fruit & S.S. Co. (1950, CA2 NY) 185 F2d 354.

Exceptionally short man acting as water tender assumed risk of standing on pump in order to open oil fuel valve when valve could have been reached by men of ordinary height present on watch. The Ipswich (1930, DC Md) 46 F2d 136, 1931 AMC 225.

Seamen may not recover for unseaworthiness where although damaged hose caused vessel to be unseaworthy, damaged hose of itself did not cause injury to seaman but rather it was seaman’s improper use of seaworthy equipment to repair damaged hose which caused accident. Landry v Oceanic Contractors, Inc. (1982, ED La) 548 F Supp 337, affd (CA5 La) 731 F2d 299, reh den, en banc (CA5 La) 746 F2d 812 and reh den, en banc (CA5 La) 746 F2d 812.

Seaman did not assume risk of injury from use of improper tools which he was using in obedience to orders. McGeorge v Charles Nelson Co. (1930) 107 Cal App 148, 290 P 75, 1930 AMC 1783.

Seaman did not assume risk of using makeshift equipment, in view of assurance received from his superior. Ferguson v Chester A. Poling, Inc. (1936) 247 App Div 727, 285 NYS 340.

<h3>387. Unsafe work methods Where maneuver involved obvious danger and risks involved were obvious, deckhand injured in course of operation assumed risk. Southern R. Co. v Hermans (1930, CA4 Va) 44 F2d 366, 1931 AMC 175.

Fault of cook for injury he received while dumping ashes overboard, in lifting drum over top of railing, instead of between rails, where wave crashed into him, will limit his recovery. Lustgarten v United States (1933, DC NY) 5 F Supp 746.

Libellant, injured when batten to which he was holding came loose, was not entitled to relief under 46 USCS Appx § 688, when he could have done work in any manner he chose and equipment for safer method was available, in absence of any showing that batten became loose because of respondent’s negligence. Smith v United States (1937, DC La) 20 F Supp 993, affd (CA5 La) 96 F2d 976, 1938 AMC 977.

Dropping of heavy fish on plank instead of handing fish to seaman in hold will reduce recovery of libellant due to contributory negligence in that chute should have been used. Petricich v Devlahovich (1952, DC Cal) 107 F Supp 871.

388. Miscellaneous

In action by seaman claiming he was injured when “cleanout” pipe rolled, crushing tip of his left toe, while he and other crew members were changing flange in main pump of dredge, trial court erred in instructing jury, over proper objection, that seaman was required to use ordinary care under circumstances for his own safety at time of accident, rather than instructing on proper standard, which is slight care. Brooks v Great Lakes Dredge-Dock Co. (1984, CA5 La) 754 F2d 536, on reh, mod (CA5 La) 754 F2d 539.

Whether or not there is rescue attempt is question for jury, and if jury finds plaintiff engaged in rescue, there must be evidence of wanton or reckless behavior on plaintiff’s part before any fault may be assigned. Furka v Great Lakes Dredge & Dock Co. (1985, CA4 Md) 755 F2d 1085, cert den (US) 88 L Ed 2d 112, 106 S Ct 136.

In action brought under Jones Act by seaman injured during loading operations, trial court properly refused to give requested jury instruction on Pennsylvania rule (placing burden on ship owner to prove that ship could not have been cause of accident when vessel is operated in violation of statute), on asserted basis that qualified deckhand did not have his credentials physically aboard ship as required by 46 CFR § 185.10, where there was no conceivable causal connection between violation and injury. Mathes v The Clipper Fleet (1985, CA9 Cal) 774 F2d 980, 19 Fed Rules Evid Serv 577.

Seaman assumed risk of death by heavy wave while engaged in stretching “save-all” under direction of experienced master. Maloney v United States (1927, DC NY) 7 F Supp 14.

Master of vessel did not assume risk of sinking of vessel from latent defects which could be discovered only by hauling vessel out of water. Re Eastern Transp. Co. (1929, DC Md) 37 F2d 355, 1930 AMC 258, mod (CA4 Md) 51 F2d 494, 1931 AMC 1233.

Seaman who attempted to trim ventilator while standing on rail assumed risk. The Duquesne (1935, DC NY) 1935 AMC 344.

Plaintiff seaman, in action for damages for fall over handrail, is not contributorily negligent in failing to report unsafe condition of handrail to his supervisors where they already knew of such condition. Scarberry v Ohio River Co. (1963, SD W Va) 217 F Supp 189.

Seaman’s Jones Act (46 USCS Appx § 688) claim against shipowner must fail, even though standards establishing negligence and causation under Act are somewhat lower than in tort actions at common law, because seaman’s own testimony and unquestioned evidence show that seaman removing canvas from floor of dining room caused his own injury by standing up too soon and striking back on table. Alrayashi v Rouge Steel Co. (1989, ED Mich) 702 F Supp 1334.

Question of whether employer was negligent in ordering longshoreman to move strongback by hand or whether longshoreman assumed risk are for jury. Cave v Brown & McCabe, Stevedores, Inc. (1929) 128 Or 286, 274 P 505.

Seaman injured when truck broke through skid-boards while seaman was blocking wheels of truck, was not barred from recovery under 46 USCS Appx § 688 by fact that injured seaman and his fellows, all of whom were experienced seamen, inspected skidboards before they placed them in position, where it was not any part of injured seaman’s duty to inspect skid-boards, and mate whose duty it was to do so made no more than casual inspection. Carlson v Wheeler-Hallock Co. (1943) 171 Or 349, 137 P2d 1001.