IS
COMPARATIVE FAULT A DEFENSE IN CASES OF SEAMEN INJURED IN RESPONDING
TO A SUPERIOR'S ORDERS?
(published December
2001)
Under
the Jones Act and general maritime law, courts have long applied the concept
of comparative fault. Thus, if a seaman's own negligence, separate and apart
from his employer's negligence, has contributed to the cause of his injury
his recovery can be reduced proportionately. The seaman's negligence does not
defeat his right to recover damages (unless his negligence is the sole cause
of his injury) but can be invoked by his employer for the purpose of mitigating
damages. For example, if the finding of the judge or jury is to the effect
that the seaman's own negligence contributed to his injury by 50 percent, damages
of $100,000 will, under the doctrine of comparative fault (also known as "comparative
negligence"), be reduced to $50,000. Courts have applied the doctrine of comparative
fault to encourage reasonable care by seamen, while at the same time placing
a high degree of responsibility on owners for the seaworthiness and safety
of their vessels and appliances.
As time passed however, various courts carved out exceptions to the rule of comparative fault in cases involving seamen injured while following orders. In Williams v. Brasea, Inc., 497 F. 2d 67 (5th Cir. 1974), the court held that "a seaman may not be contributorily negligent for carrying out orders that result in his own injury, even if he recognizes possible danger." The court concluded in Williams that it was unreasonable to require a seaman who received an order to delay execution of the order until he or she made a reasonable effort to be sure that following the order would not cause injury. In Tolar v. The Kinsman Marine Transit Co., 618 F. 2d 1193 (6th Cir. 1980) the Sixth Circuit Court of Appeals held the doctrine of comparative negligence was not available where a seaman completed his task in the only way possible. The Eighth Circuit in Alholm v. American Steamship Co., 144 F. 3d 1172, 1179 (8th Cir. 1998) attempted to find a middle ground and devised a rule whereby the recognition of comparative negligence for following an order depends on whether the seaman is ordered to complete the task in a specific manner: "The negligence of the worker and the possibility of a safe alternative may be considered when a seaman is ordered to do a task but is not instructed on the method to use and he acts negligently despite the availability of an alternative."
In May, 2001 the Ninth Circuit Court of Appeals addressed the issue in the case of Simeonoff v. Hiner, 2001 DJDAR 4461. Simeonoff was a seaman aboard a commercial fishing vessel who was injured when he responded to a superior's "urgent" call for assistance. He brought a claim pursuant to the Jones Act and general maritime law against the fishing vessel and its owners claiming negligence and unseaworthiness. The district court found the vessel and its owners seventy percent negligent and Simeonoff 30 percent negligent. The court found $163,500 total damages and, reducing that by 30 percent, awarded $114,450 to Simeonoff. Simeonoff appealed to the Ninth Circuit, arguing, among other things, that the district court clearly erred by finding him contributorily negligent.
The Ninth Circuit began its discussion by acknowledging that in maritime personal injury actions under the Jones Act courts have long applied the concept of comparative fault. The court noted, however, that exceptions have been made in cases involving injuries to seamen while following orders. The court explained its concern for the effect of even a general order on a seaman:
When given any order, the seaman might be aware of potential injury if the order is followed, but reasonably might sacrifice personal safety for the good of the ship or crew. An order given from superior to seaman on the open sea should constitute the result of the superior's consideration of risk to the seaman balanced against the value of the task to the safety and mission of all. It is more reasonable for a seaman to follow an order without assessing alternatives than to weigh alternatives beyond the immediate order. To assess alternatives is to second guess the superior's assessment of the situation. Disruption of the chain of command at sea, and delays by seamen in executing orders, may imperil crew and vessel.
The Ninth Circuit found that compliance with orders from supervisors would promote vessel safety and would aid efficacy of command at sea. Thus, a seaman may not be held contributorily negligent for carrying out orders that result in injury, even if the seaman recognizes possible danger and does not delay to consider a safer alternative.
Had the Ninth Circuit stopped there, its ruling would have charted no new waters. Such a ruling would have been consistent with the rule announced by the Fifth Circuit in Williams v. Brasea, Inc. ("a seaman may not be contributorily negligent for carrying out orders that result in his own injury, even if he recognizes possible danger").
Unfortunately for employers, the Ninth Circuit did not stop there. The court went on to consider whether the rule against comparative negligence when a seaman follows an order also precludes comparative negligence when a seaman responds to an urgent, yet general call to the crew for assistance. The Ninth Circuit held that it did:
In the worst case, one who hesitates at sea to aid a superior may cause dire loss to vessel or crew or both. A seaman cannot safely pause to assess the dangers of responding to an urgent, general call for help from a superior. An urgent call for help, like an order, should represent a superior's assessment of hazards to vessel and crew in a perilous marine setting. Seamen who respond to a call for help, when the need may be urgent, must not be penalized. We hold that a seaman who responds to a superior's urgent call to the crew for help cannot be found contributorily negligent.
The Ninth Circuit in a footnote expressed its concern about its ruling creating an exception that "may swallow the rule." The court noted that to preclude comparative negligence requires conduct in response to a particular call for help, and not merely work pursuant to the ordinary assignment of duties or a particular task: "When a seaman completes an ordinary task at sea, even if requested by a superior, contributory negligence may mitigate damages if an injured seaman had alternatives available, and chose the unreasonable course in completing that task. We do not alter this general principle."
Whether the Ninth Circuit's footnote prevents its ruling from "swallowing the rule" of comparative fault is debatable. Clearly, an employer can no longer assert the doctrine of comparative fault in the case of a seaman responding to an "urgent call" by a superior for help. It also seems clear that an employer cannot rely on the doctrine of comparative fault in the case of a seaman injured while responding to a specific order to do a particular task in a particular manner, or when there is only one way of completing a given task.
The difficult question, and one which is not clearly answered by the Ninth Circuit, is under what circumstances can an employer argue comparative fault? The court's footnote states the doctrine of comparative fault is available when a seaman is injured in performing his "ordinary duties." This raises the question as to what are "ordinary duties." Furthermore, by adopting the Fifth Circuit's rule in Williams in its holding ("a seaman may not be held contributorily negligent for carrying out orders that result in injury, even if the seaman recognizes possible danger and does not delay to consider a safer alternative"), it could be argued that there are few instances in which comparative fault could be asserted.
What is clear is that the doctrine of comparative fault, at least in cases of injury to seamen, is being circumscribed by the courts. Employers will have to be even more cautious that their supervisors' orders and their "urgent" requests for assistance are the product of the superiors' considered assessment of the risks and benefits of their directives.
