section9

Model Jury - Section 9

CIVIL INSTRUCTIONS

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9. JONES ACT AND OTHER ADMIRALTY CLAIMS

Preliminary Comment

These instructions were prepared for use in actions brought under maritime common law and the Jones Act, 46 U.S.C. § 688, by crew members against their employers. The instructions focus on the issues of negligence, contributory negligence, unseaworthiness, and maintenance and cure. They assume that plaintiff was injured while in the course of employment as a crew member of a vessel.

Definitional sections for "crew member," "seaman," "vessel," "in the course of employment," and "in the service of the vessel" have not been included because of the infinite variety of situations that arise. For assistance in dealing with these terms, it is preferable to refer to cases with fact patterns similar to the case under consideration. See, e.g., Southwest Marine, Inc. v. Gizoni, ___ U.S. ___, 112 S. Ct. 486, 116 L. Ed. 2d 405 (1991) (discussing "crew member," "seaman," and "vessel"); McDermott Int'l v. Wilander, 498 U.S. 337 (1991) (discussing "seaman").

9.01.01 JONES ACT--NEGLIGENCE CLAIM--ELEMENTS AND BURDEN OF PROOF--AFFIRMATIVE DEFENSE (46 U.S.C. § 688)

[On the plaintiff's __________________ claim,] the plaintiff has the burden of proving each of the following by a preponderance of the evidence:

1. the defendant was negligent; and

2. the defendant's negligence was a [proximate] [legal] cause of an injury to the plaintiff.

If the plaintiff has failed to prove each of these things, your verdict should be for the defendant. If, on the other hand, you find that each of the things on which the plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff.

[The defendant has the burden of proving each of the following by a preponderance of the evidence:

1. the plaintiff was negligent; and

2. the plaintiff's negligence was a [proximate] [legal] cause of the plaintiff's own injury.

If you find that each of the things on which the defendant has the burden of proof has been proved, you must reduce the amount of damages to which plaintiff would otherwise be entitled.]

Comment

See In re Hechinger, 890 F.2d 202, 208-209 (9th Cir. 1989), cert. denied, 498 U.S. 848, (1990); cf. Mohn v. Marla Marie, Inc., 625 F.2d 900 (9th Cir. 1980).

Use the second half of this instruction in conjunction with Instruction 9.03.02.

9.01.02 JONES ACT--NEGLIGENCE DEFINED

Negligence is the failure to use reasonable care. Reasonable care is the degree of care that reasonably prudent persons would use under like circumstances to avoid injury to themselves or others. Negligence is the doing of something that a reasonably prudent person would not do, or the failure to do something that a reasonably prudent person would do, under like circumstances.

9.01.03 JONES ACT--NEGLIGENCE CLAIM--[PROXIMATE] [LEGAL] CAUSE

[The requirement of [proximate] [legal] cause for plaintiff's negligence claim is different from that for the unseaworthiness claim.]

Negligence is a [proximate] [legal] cause of an injury or damage if it played any part, no matter how small, in bringing about the injury or damage. Therefore, even if the negligence operated in combination with the acts of another, or in combination with some other cause, the negligence was a [proximate] [legal] cause of the injury or damage if it played any part, no matter how small, in bringing about the injury or damage.

Comment

Where negligence and unseaworthiness are both claimed, it may be advisable to compare the causal requirements for each. See Lies v. Farrell Lines, 641 F.2d 765, 769 & n.7 (9th Cir. 1981).

See Comments to Instructions 3.09 and 7.01 regarding causation.

9.01.04 JONES ACT--PLAINTIFF'S COMPLIANCE WITH DEFENDANT'S REQUEST OR DIRECTIONS

The plaintiff is not negligent simply because the plaintiff, upon the request or direction of the defendant, worked at a dangerous job, or in a dangerous place, or under dangerous conditions.

9.02.01 JONES ACT--UNSEAWORTHINESS CLAIM--ELEMENTS AND BURDEN OF PROOF--AFFIRMATIVE DEFENSE (46 U.S.C. § 688)

[On the plaintiff's ____________________ claim,] the plaintiff has the burden of proving each of the following by a preponderance of the evidence:

1. the [name of vessel] was unseaworthy; and

2. the unseaworthy condition was a [proximate] [legal] cause of an injury to plaintiff.

[The defendant has the burden of proving each of the following by a preponderance of the evidence:

1. the plaintiff was negligent; and

2. the plaintiff's negligence was a [proximate] [legal] cause of the plaintiff's own injury.

If you find that each of the things on which the defendant has the burden of proof has been proved, you must reduce the amount of damages to which plaintiff would otherwise be entitled.]

Comment

See In re Hechinger, 890 F.2d 202, 208-209 (9th Cir. 1989), cert. denied, 498 U.S. 848, (1990); Reinhart v. United States, 457 F.2d 151, 153-54 (9th Cir. 1972); cf. Mohn v. Marla Marie, Inc., 625 F.2d 900 (9th Cir. 1980).

Use the second half of this instruction in conjunction with Instruction 9.03.02.

9.02.02 JONES ACT--UNSEAWORTHINESS DEFINED

A vessel owner has a duty to provide and maintain a seaworthy vessel. [That duty cannot be turned over to anyone else.]

A vessel is seaworthy if the vessel and all of its parts and equipment are reasonably fit for their intended purpose [and it is operated by a crew reasonably adequate and competent for the work assigned].

A vessel is unseaworthy if the vessel, or any of its parts or equipment, is not reasonably fit for its intended purpose [or if its crew is not reasonably adequate or competent to perform the work assigned].

Comment

In re Hechinger, 890 F.2d 202, 207-209 (9th Cir. 1989), cert. denied, 498 U.S. 848 (1990) (definition of a seaworthy vessel).

A shipowner has the duty to a seaman employed on the ship to furnish a vessel and appurtenances which are reasonably fit for their use. This includes maintaining a ship's equipment in proper operating condition. The failure of a piece of equipment under proper and expected use is sufficient to establish unseaworthiness. Lee v. Pacific Far E. Line, 566 F.2d 65, 67 (9th Cir. 1977).

A vessel may be unseaworthy because of the presence of a violent or assaultive crew member. Pashby v. Universal Dredging Corp., 608 F.2d 1312, 1313-14 (9th Cir. 1979). Cf. Palmer v. Apex Marine Corp., 510 F. Supp. 72 (W.D. Wash. 1981). In Palmer, the court declined to find a vessel unseaworthy because of the vicious propensities of a seaman who fought with the plaintiff, when the nature of the fight did not indicate undue viciousness. In addition, the court found that the drunkenness of the boatswain did not render the vessel unseaworthy under the circumstances.

A vessel must be fit for the use anticipated and must be able to withstand expected seasonable weather in the area where it is used. Nygaard v. Peter Pan Seafoods, Inc., 508 F. Supp. 151, 153 n.5 (W.D. Wash. 1981), remanded on other grounds, 701 F.2d 77 (9th Cir. 1983).

9.02.03 JONES ACT--UNSEAWORTHINESS--[PROXIMATE] [LEGAL] CAUSE

[The requirement of [proximate] [legal] cause for plaintiff's unseaworthiness claim is different from that for the negligence claim.]

Unseaworthiness is a [proximate] [legal] cause of injury or damage if it played a substantial part in bringing about injury or damage.

Comment

Where negligence and unseaworthiness are both claimed, it may be advisable to compare the causal requirements for each. See Lies v. Farrell Lines, 641 F.2d 765, 769 & n.7 (9th Cir. 1981); Litherland v. Petrolane Offshore Constr. Servs., 546 F.2d 129, 131-133 (5th Cir. 1977); Reinhart v. United States, 457 F.2d 151, 153-54 (9th Cir. 1972).

9.03.01 JONES ACT--NEGLIGENCE OR UNSEAWORTHINESS--DAMAGES--PROOF

If you find for the plaintiff [on plaintiff's [negligence] [or] [unseaworthiness] claims], you must determine plaintiff's damages. Plaintiff has the burden of proving damages by a preponderance of the evidence. Damages means the amount of money which will reasonably and fairly compensate the plaintiff for any injury you find was [proximately] [legally] caused by the [negligence of the defendant] [or] [unseaworthiness of the vessel]. You should consider the following:

[Here insert types of damages. See Instruction 7.02--

MEASURES OF TYPES OF DAMAGES]

[The cost of obtaining room and board on land, equivalent to that provided at sea, for those periods that the plaintiff would have worked aboard ship but for this injury.]

Comment

For a discussion regarding the extent to which punitive damages are available see Evich v. Morris, 819 F.2d 256, 258-259 (9th Cir.), cert. denied, 484 U.S. 914 (1987).

The collateral source rule applies in cases brought under the Jones Act. See Folkestad v. Burlington N., Inc., 813 F.2d 1377, 1380 & n.3 (9th Cir. 1987).

The last paragraph of the instruction outlines damages that are unique to the Jones Act.

9.03.02 JONES ACT--NEGLIGENCE OR UNSEAWORTHINESS--PLAINTIFF'S NEGLIGENCE--REDUCTION OF DAMAGES

If you find for plaintiff but also find that the plaintiff's negligence was a [proximate] [legal] cause of the plaintiff's injury, you must reduce the amount of damages to which the plaintiff would otherwise be entitled by the percentage of negligence you attribute to the plaintiff. [For example, if the negligence of the plaintiff made a 10% contribution to the plaintiff's injuries, the amount that you would otherwise award must be reduced by 10%. Of course, by using 10% as an example, I do not mean to suggest any figure to you. The percentage of plaintiff's contribution, if any, is for you to decide.]

Comment

45 U.S.C. § 53.

See Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408-409 (1953); Kopczynski v. The Jacqueline, 742 F.2d 555, 557-558 (9th Cir. 1984), cert. denied, 471 U.S. 1136 (1985); Pan-Alaska Fisheries, Inc. v. Marine Const. & Design Co., 565 F.2d 1129, 1138 (9th Cir. 1977).

9.04 JONES ACT--MAINTENANCE AND CURE--WILLFUL OR ARBITRARY FAILURE TO PAY

[On plaintiff's _____________________________ claim,] the plaintiff has the burden of proving each of the following by a preponderance of the evidence:

1. the plaintiff was injured or became ill while in the service of the vessel;

2. maintenance and cure was not provided; and

3. the amount of maintenance and cure to which the plaintiff was entitled.

[Add appropriate concluding paragraphs from Instructions 5.03, 5.04, or 5.05.]

Maintenance is the cost of food and lodging, and transportation to and from a medical facility. [Plaintiff is not entitled to maintenance while hospitalized because hospitalization includes food and lodging.]

Cure is the cost of medical attention, including the services of physicians and nurses as well as the cost of hospitalization, medicines and medical apparatus.

The injury or illness need not be work-related so long as it occurs while in the service of the vessel. Neither maintenance nor cure may be reduced because of any negligence on the part of the plaintiff.

Plaintiff is entitled to receive maintenance and cure from the date of departure from the ship to the time of maximum possible cure under the circumstances. Maximum possible cure is the point at which no further improvement in the plaintiff's medical condition may be reasonably expected.

There can be no double recovery for plaintiff. If you find that the plaintiff is entitled to an award of damages under the negligence claim or under the unseaworthiness claim, and if you include either loss of wages or medical expenses in the damage award relating to either of these claims, then maintenance and cure cannot be awarded for the same period.

[The plaintiff also claims the defendant willfully or arbitrarily failed to pay maintenance and cure when it was due. On this claim, the plaintiff must prove each of the following by a preponderance of the evidence:

1. the plaintiff was entitled to maintenance and cure;

2. the defendant willfully or arbitrarily failed to provide maintenance and cure; and

3. the defendant's failure to provide maintenance and cure resulted in injury to plaintiff.

Where defendant's failure to provide maintenance and cure worsens plaintiff's injury, plaintiff may recover resulting damages and expenses, including pain and suffering, additional medical expenses and a reasonable sum for legal services to obtain maintenance and cure.]

[Add appropriate concluding paragraphs from Instructions 5.03, 5.04, or 5.05.]

Comment

See Gardiner v. Sea-Land Serv., 786 F.2d 943, 945-946 (9th Cir.), cert. denied, 479 U.S. 924 (1986); Kopczynski v. The Jacqueline, 742 F.2d 555, 557-558 (9th Cir. 1984), cert. denied, 471 U.S. 1136 (1985).

The shipowner's duty to provide maintenance and cure arises irrespective of whether the illness or injury is suffered in the course of the seaman's employment, and negligence on the seaman's part will not relieve the shipowner of responsibility. Vella v. Ford Motor Co., 421 U.S. 1, 4-5 (1975). A plaintiff may not recover for maintenance and cure where the injury or illness results from the plaintiff's own willful misbehavior. See Omar v. Sea-Land Serv., 813 F.2d 986, 989-990 (9th Cir. 1987).

Punitive damages may be available, in some circumstances, where payment for maintenance and cure is wrongfully denied. See Evich v. Morris, 819 F.2d 256, 258-259 (9th Cir.), cert. denied, 484 U.S. 914 (1987); Sample v. Johnson, 771 F.2d 1335, 1347 n.12 (9th Cir. 1985), cert. denied, 475 U.S. 1019 (1986).

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