Jones Act – Procedure – 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.

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.

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.