California Federal Court: “Primary Duty Rule” No Bar to Third Mate’s Personal Injury Claims
Employers of Jones Act seamen sometimes try to defeat the seaman’s personal injury or death case by invoking the “Primary Duty Rule,” sometimes also known as the Walker-Reinhart Doctrine, after the two cases which first announced the Rule, Walker v. Lykes Bros., 193 F.2d 772 (2d Cir. 1952), and Reinhart v. United States, 457 F.2d 151 (9th Cir. 1972).
Under the Primary Duty Rule, a seaman may not recover from his employer for injuries caused by his own failure to perform a duty imposed on him by his employment. And, if a seaman is found to have violated the Rule, his Jones Act negligence and general maritime law unseaworthiness claims can be completely barred. But, the Rule has three limitations: First, the seaman must have consciously assumed the duty as a term of employment. Second, the dangerous condition which injured the seaman must have been created by the seaman or could have been controlled or eliminated solely by the seaman in the proper exercise of his or her employment duties. Finally, the seaman must have knowingly violated a duty consciously assumed as a condition of employment.
By implication, the Rule has three limitations. First, it will not bar a claim of injury arising from the breach of a duty the plaintiff did not consciously assume as a term of his employment. Second, it does not apply where a seaman is injured by a dangerous condition he or she did not create and, in the proper exercise of his or her employment duties, could not have controlled or eliminated. Third, the rule applies only to a knowing violation of a duty consciously assumed as a term of employment.
In Barry v. United States, 2013 U.S. Dist. LEXIS 48915 (N.D. Cal. Apr. 1, 2013), the plaintiff, Stephen Barry, the vessel’s Third Mate, was overseeing a mooring operation at Newport News, Virginia. A stopper line broke. This caused the mooring line to strike and injure Barry’s left leg. Barry sued for negligence under the Jones Act and, under the general maritime law, for unseaworthiness and maintenance and cure. The Court found the stopper line provided by the defendant “was of insufficient tensile strength to perform the job for which it was intended.”
The Court thus found the defendant liable for Barry’s injury under his Jones Act claim. It held the defendant had a duty to provide Barry with a safe working environment, including adequate equipment to perform his duties, but breached this duty when it supplied Barry with “a stopper too weak to perform the mooring operation in a manner which seamen would customarily expect to be safe. During a mooring operation, a seaman normally would expect a stopper to withstand stress equivalent to one-half of a mooring line’s capacity, in this case 30 tons. The stopper on the Vessel, however, could take only 20 tons before breaking. Defendant and its agents had notice of this dangerous condition because they knew, or should have known, the customary equipment strength requirements. Moreover, Defendant and its agents procured the 1″ stopper nylon line and thus knew, or should have known, of its inadequate strength. Because Defendant negligently provided a stopper that could endure only 20 tons of stress, and not the 30 tons that a reasonable seaman would expect, the stopper failed during the mooring operation when subjected to no more than 24 tons of tension. This failure caused the mooring line to strike and injure Plaintiff.”
Since the Court found the defendant failed to prove Barry acted unreasonably for a seaman during the mooring operation, it concluded he was not subject to a contributory negligence finding nor did he violate the Primary Duty Rule as to his Jones Act negligence claim.
Finally, the Court found Barry had proved his general maritime law unseaworthiness claim by showing the stopper was not reasonably fit for its intended use. As to this claim as well, the Court held the defendant failed to prove Barry acted unreasonably for a seaman during the mooring operation and therefore he was “not subject to contributory fault or the primary duty rule….”
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Linesman’s Louisiana State Court Lawsuit, in Which he Claimed to Be Jones Act Seaman, Improperly Removed to Federal Court
Earl Scott Brewer filed a lawsuit in the Twenty-Third Judicial District Court of St. James Parish, Louisiana, against Cooper/T. Smith Mooring Co. (“Cooper”) and others. He claimed he worked for Cooper as a linesman and that when pulling on a line while releasing a barge from a dock, he seriously injured his neck, back and shoulder. Cooper transferred, or “removed,” Brewer’s lawsuit to federal court in New Orleans. Brewer then filed a motion in federal court, asking the judge to “remand” his Jones Act case, or send it back, to Louisiana state court. Cooper and the other defendants argued in opposition that Brewer failed to qualify as a Jones Act seaman and therefore that the law which prohibits defendants from removing Jones Act suits did not apply.
In Brewer v. Motiva Enters., LLC, 2013 U.S. Dist. LEXIS 16810 (E.D. La. Feb. 7, 2013), U.S. District Judge Nannette Jolivette Brown sided with Brewer and sent his case back to state court. She wrote that “[w]hile Jones Act suits filed in state court are typically immune from removal, defendants may pierce the pleadings to show that a Jones Act claim has been fraudulently pled by a plaintiff to prevent removal.” The Court noted, however, that “the burden is on a defendant to refute a plaintiff’s assertion that he is a Jones Act seaman when the defendant seeks removal, and all doubts must be resolved in favor of the plaintiff….the mere assertion of fraud is not sufficient to warrant removing the case to federal court….Defendants must prove that the allegations of the complaint were fraudulently made, and any doubts should be resolved in favor of the plaintiff.”Judge Brown discussed the United States Supreme Court’s two-part test to determine whether a worker can qualify as a seaman under the Jones Act: “First, ‘an employee’s duties must ‘contribut[e] to the function of the vessel or to the accomplishment of its mission.’ Second, ‘a seaman must have a connection to a vessel in navigation (or to an identifiable group of vessels) that is substantial in terms of both its duration and its nature.’ The purpose of the substantial connection requirement is ‘to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based maritime workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.'”
Judge Brown discussed the U.S. Supreme Court’s decision in Chandris v. Latsis, in which the high court adopted the U.S. Fifth Circuit Court of Appeals’ “thirty percent rule” to decide whether a worker has a connection to a vessel substantial enough to qualify as a Jones Act seaman. In the Chandris decision, the Supreme Court wrote that “[a] worker who spends less than about thirty percent of his time in service of a vessel in navigation should not qualify as a seaman under the Jones Act.”
Brewer argued to Judge Brown that in ruling on “the substantiality of an employee’s vessel related work, the Court must look at his entire work history; however, when an employee has received a new permanent work assignment before the alleged accident, substantiality is measured in relation to his new job.” Brewer also argued it was improper for the Defendants to include standby time in the total calculation of his work history in an effort to show his vessel-related work was less than the required 30%.
Judge Brown concluded: “In the absence of controlling authority that [standby] time must be included in the [seaman status] calculation, this Court cannot say that Plaintiffs’ claim that it should not be included is ‘baseless in law.’ Therefore, Defendants have not met their burden and this matter is appropriately remanded to state court.”
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U.S. Supreme Court: Floating Home Not Designed to Any Practical Degree for Carrying People or Things on Water not a “Vessel”
Whether a structure is a “vessel” under maritime law has significant consequences, including, for example, whether those aboard it may be considered “seamen” under the Jones Act, whether it is subject to regulation by the U.S. Coast Guard, or whether those furnishing “necessaries” to it are entitled to assert a maritime lien against it when those necessaries are not paid for. The last consequence was at issue in Lozman v. City of Riviera Beach, 2013 U.S. LEXIS 907 (U.S. Jan. 15, 2013), decided earlier this week.
Fane Lozman’s (now destroyed) floating home
In 2002, Fane Lozman bought the 60-foot by 12-foot floating home pictured here. It was constructed of plywood and had French doors on three sides. Inside, it had a sitting room, bedroom, closet, bathroom, kitchen, and a stairway leading to a second level with office space. Under the main floor, an empty bilge space kept the structure afloat. After be bought it, Lozman had the house towed about 200 miles to North Bay Village, Florida. He moored it there and then twice more had it towed between nearby marinas. Four years later, Lozman had the structure towed 70 miles to a marina owned by the city of Riviera Beach, Florida. There he docked it. Lozman and the city had disagreements, the city tried to evict him from the marina, and then the city sued the floating home in federal court “in rem,” invoking the federal district court’s admiralty jurisdiction, seeking to assert against it a maritime lien for dockage fees and damages for trespass.
The Federal Maritime Lien Act, 46 U.S.C. § 31342, entitled “Establishing maritime liens,” states that “a person providing necessaries to a vessel on the order of the owner or a person authorized by the owner…has a maritime lien on the vessel” and “may bring a civil action in rem to enforce the lien…” The federal jurisdictional statute, 28 U.S.C. § 1333(1), entitled “Admiralty, maritime and prize cases,” provides that “[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of…[a]ny civil case of admiralty or maritime jurisdiction….”
Lozman asked the federal trial court to dismiss the city’s lawsuit because, he argued, his floating home was not a “vessel,” and thus the court lacked admiralty jurisdiction, or power to hear the city’s case. Both the trial court and the federal appeals court sitting over it, the Eleventh Circuit Court of Appeals, sided with the city, finding the floating home was a “vessel” under admiralty law and thus that the trial court did have power to hear the city’s case. The Supreme Court, however, disagreed, finding the two lower courts had erred by interpreting the statutory definition of a “vessel” too broadly. Its 7-2 opinion, authored by Justice Breyer, focused on the phrase, “capable of being used…as a means of transportation on water,” in the federal statutory definition of a vessel appearing in 1 U.S.C. § 3. This provision, entitled “‘Vessel’ as including all means of water transportation,” states: “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.”
The Supreme Court held, “in our view a structure does not fall within the scope of this statutory phrase unless a reasonable observer, looking to the home’s physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water.” The Court also found that “nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water. It had no rudder or other steering mechanism….Its hull was unraked…and it had a rectangular bottom 10 inches below the water….It had no special capacity to generate or store electricity but could obtain that utility only through ongoing connections with the land….Its small rooms looked like ordinary nonmaritime living quarters. And those inside those rooms looked out upon the world, not through watertight portholes, but through French doors or ordinary windows…..The home has no other feature that might suggest a design to transport over water anything other than its own furnishings and related personal effects. In a word, we can find nothing about the home that could lead a reasonable observer to consider it designed to a practical degree for ‘transportation on water.'”
The Court concluded:
“We are willing to assume for argument’s sake that sometimes it is possible actually to use for water transportation a structure that is in no practical way designed for that purpose….But even so, the City cannot show the actual use for which it argues. Lozman’s floating home moved only under tow. Before its arrest, it moved significant distances only twice in seven years. And when it moved, it carried, not passengers or cargo, but at the very most (giving the benefit of any factual ambiguity to the City) only its own furnishings, its owner’s personal effects, and personnel present to assure the home’s safety….This is far too little actual ‘use’ to bring the floating home within the terms of the [statutory definition of a “vessel”].
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52 Year-Old Crewman of Offshore Tug Injured During Submerged Pipeline Anchor Pulling Entitled to $1,678,948 in Damages
In Harrington v. Atlantic Sounding Co., 2013 U.S. Dist. LEXIS 2988 (E.D.N.Y. Jan. 7, 2013), Brooklyn-based U.S. District Judge Nina Gershon found Atlantic Sounding Co., Inc. and Weeks Marine, Inc. negligent under the Jones Act and the tug M/V CANDACE unseaworthy under the general maritime law. She found no contributory negligence. She awarded Frederick J. Harrington Jr., 52 at the time of the accident, $478,948 in past lost wages and loss of future earning capacity, $500,000 for past pain and suffering, and $700,000 for future pain and suffering.
The accident occurred on April 10, 2005, while the CANDACE was offshore Panama City, Florida, and its crew was moving a submerged pipeline. Before the crew could move the pipeline, though, it had to lift the anchors attached to the ends of the pipeline, a process called “anchor pulling” or “line pulling.” The court discussed how, to “lift the anchor, a tugboat is required to position itself near a buoy, floating on the surface of the water, which is connected by a pennant wire to the anchor on the floor of the ocean.”
Judge Gershon was persuaded by Harrington’s maritime expert, Mitchell Stoller, who testified that the tug should have been positioned to minimize vessel movement during the operation, which movement could cause the crewmen working on the deck “to get jerked or lose their balance or [get] hurt.” The court described how the accident occurred, as follows:
“As plaintiff and [another crewman] began the process of retrieving and lifting the line anchor, plaintiff was tasked with using the boat hook to capture the pennant wire, while [the other crewman] held the winch cable and hook. [The tug’s First Mate] had maneuvered the boat so that it was abeam to the sea, and therefore the boat was rolling back and forth. The rolling, combined with the wet stainless steel deck and the open stern, left plaintiff standing in an awkward position. After plaintiff captured the pennant wire and pulled the buoy toward the boat, he was crouched in a wide stance, in order to maintain his footing while leaning forward to retrieve the pennant wire’s eyelet. After retrieving the pennant wire, while attempting to connect it to the trip hook, the boat moved out of position, causing the pennant wire to go taut, which twisted plaintiff’s back causing the injury in question. Nevertheless, because there was slack in the winch cable, plaintiff was able to make the connection with the trip hook and successfully complete the task.”
Judge Gershon found the defendants negligent because the First Mate failed to ensure Harrington was in a position to perform the task safely and failed to maintain the tug in a proper position. The judge found the M/V CANDACE unseaworthy because the entire crew “had very limited experience pulling line anchors through floating buoys on a tug with an open stern,” and that the First Mate, who was at the wheel, “had none.” Further, the crew was “working on a brand new vessel unlike any that defendants had previously launched and which was designed for a task different from that in which the three were engaged.” Also, “defendants provided no training, no assessment of the risks, and provided no instruction on how the task might be performed safely or how plaintiff might position himself while attempting to pull an anchor without a stern on which to brace himself. Finally, and most importantly, defendants failed to train [the First Mate] on how best to position, and keep in position, the tug while plaintiff was pulling the anchors.”
A neurosurgeon diagnosed Harrington with a herniated lumbar disc and right foot drop, that was a result of a severely compressed nerve in his lower back. Harrington underwent two surgeries: An L4-L5 diskectomy, followed by an L4-L5 fusion. The fusion involved removal of the spinal disc and implantation of a carbon-fiber cage, fastened with screws to the bone above and below the disc space.
Judge Gershon determined Harrington’s loss of enjoyment of life was significant. She found he “can no longer do any of the activities that he did prior to the injury, including fishing, maintenance of his home, walking on the beach, scuba diving, or riding a bike. In addition, because of his limitations regarding sitting and walking, plaintiff is substantially confined to his home and has gained a significant amount of weight. Plaintiff attempted to take computer classes, so that he would be able to work a computer, but was unable to take the class because he could not sit for the required period of time.”
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