These instructions are for use in an action for negligence under the Jones Act, 46 U.S.C. § 30104, and under the general maritime law for unseaworthiness and for maintenance and cure. A plaintiff must be a "seaman" in order to recover under any of these theories, and therefore Instruction 7.l is a threshold instruction on seaman status. Instructions 7.2–7.4 pertain to Jones Act negligence claims, Instructions 7.5–7.7 pertain to claims under the doctrine of unseaworthiness, Instructions 7.8–7.10 pertain to damages under both Jones Act negligence and unseaworthiness, and Instructions 7.11 and 7.12 pertain to claims and damages under the doctrine of maintenance and cure. While a right to trial by jury does not attach to claims for unseaworthiness or maintenance and cure standing alone, as those claims sound in admiralty, a jury may determine those claims when brought in conjunction with a Jones Act negligence claim at law to which a right to trial by jury is permitted. 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6–25 (4th Ed. 2004).
Definitions of "crew member," "vessel," "in the course of employment," and "in the service of the vessel" are not 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., Chandris, Inc. v. Latsis, 515 U.S. 347 (1995) (discussing "crew member," and "vessel"); Martinez v. Signature Seafoods Inc., 303 F.3d 1132, 1135–37 (9th Cir.2002) (discussing "vessel in navigation"); Stewart v. Dutra Construction Co., 543 U.S. 481, 489–97 (2005) (discussing "vessel" under the Longshore and Harbor Workers’ Compensation Act).
7.1 SEAMAN STATUS
The plaintiff seeks recovery against the defendant under the Jones Act for negligence. [[He] [She] also seeks recovery under [general maritime law for unseaworthiness] [and] [maintenance and cure].] Only a "seaman" can bring these claims. The parties dispute whether or not the plaintiff was employed as a seaman.
The plaintiff must prove that [he] [she] was a "seaman" in order to recover. To prove seaman status, the plaintiff must prove the following elements by a preponderance of the evidence:
1. the plaintiff contributed to the mission or operation of [a vessel] [an identifiable group of vessels] in navigation, whether underway or at anchor; and
2. the plaintiff had an employment-related connection to [the vessel] [an identifiable group of vessels] which was substantial in terms of both duration and nature.
The phrase "vessel in navigation" is not limited to traditional ships or boats, but includes every type of watercraft or artificial contrivance used, or practically capable of being used, as a means of transportation on water.
The phrase "substantial in duration" means that the plaintiff’s connection to [the vessel] [an identifiable group of vessels] must be more than merely sporadic, temporary, or incidental.
The phrase "substantial in nature" means that it must regularly expose [him] [her] to the special hazards and disadvantages that are characteristic of a seaman’s work.
In order to recover for negligence under the Jones Act, under the doctrine of unseaworthiness, or under a claim for maintenance and cure, the plaintiff must be a "seaman" and must satisfy a two-element test. See Harbor Tug & Barge Company v. Papai, 520 U.S. 548, 554 (1997); Chandris, Inc. v. Latsis, 515 U.S. 347, 355 (1995); Gizoni v. Southwest Marine Inc., 56 F.3d 1138, 1141 (9th Cir.1995). The seaman inquiry is a mixed question of law and fact, and when necessary, should be submitted to the jury. Delange v. Dutra Construction Co., 183 F.3d 916, 919 (9th Cir.1999). The Jones Act does not define the term "seaman," and the issue of who is or is not covered by the statute has been repeatedly considered by the Supreme Court since 1991. See McDermott Int’l. v. Wilander, 498 U.S. 337 (1991); Southwest Marine Inc. v. Gizoni, 502 U.S. 81 (1991); Chandris, 515 U.S. 347; Papai, 520 U.S. 548; Stewart v. Dutra Construction Co., 543 U.S. 481 (2005). In defining the prerequisites for Jones Act coverage, the Supreme Court has found it preferable to focus upon the essence of what it means to be a seaman and to reject detailed tests that tend to become ends in and of themselves. "The Jones Act remedy is reserved for sea-based maritime employees whose work regularly exposes them to the special hazards and disadvantages to which they who go down to sea in ships are subjected." Chandris, 515 U.S. at 369–70. In Chandris, the Court said the essential test for seaman status "comprises two basic elements: The worker’s duties must contribute to the function of the vessel or to the accomplishment of its mission, and the worker must have a connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in terms of both its duration and its nature." Id. at 376.
The Supreme Court has cautioned against using a "snapshot" test, and admonishes that plaintiff’s seaman status must be determined in the context of his or her "overall employment" with the defendant employer. Chandris, 515 U.S. at 366–67. In the Court’s view, the total circumstances of an individual’s employment must be weighed to determine whether he or she had a sufficient relation to the navigation of vessels and the perils attendant thereon. The duration of a worker’s connection to a vessel and the nature of the worker’s activities, taken together, determine whether a maritime employee is a seaman because the ultimate inquiry is whether the worker in question is a member of the vessel’s crew or simply a land-based employee who happens to be working on the vessel at a given time. Id. at 369–70. The Court has also identified an appropriate rule of thumb for applying the temporal or durational requirement in the ordinary case: "A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act." Id. at 371.
A plaintiff may be entitled to an instruction on the fleet seaman doctrine if it has some foundation in the evidence. Gizoni, 56 F.3d at 1141 ("Under the fleet doctrine, one can acquire ‘seaman status’ through permanent assignment to a group of vessels under common ownership or control.").
The Longshore and Harbor Workers’ Compensation Act (LHWCA) excludes from its coverage "a master or member of a crew of any vessel." 33 U.S.C. § 902(3)(G). Masters and crew members are entitled to sue under the Jones Act and the doctrine of unseaworthiness. A non-seaman is limited to the remedies of the LHWCA.
7.2 JONES ACT NEGLIGENCE CLAIM—ELEMENTS AND BURDEN OF PROOF (46 U.S.C. § 30104)
On the plaintiff’s Jones Act negligence claim, the plaintiff has the burden of proving the following elements by a preponderance of the evidence:
1. the plaintiff was a seaman;
2. the defendant was negligent; and
3. the defendant’s negligence was a cause of the injury or damage to the plaintiff.
If you find the plaintiff has proved the elements on which [he] [she] has the burden of proof, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.
For a discussion of the elements of a Jones Act negligence claim, see In re Hechinger, 890 F.2d 202, 208 (9th Cir.1989) ("To recover under a Jones Act claim, a plaintiff has the burden of establishing by a preponderance of the evidence, negligence on the part of his employer ... [and] that the act of negligence was a cause, however slight, of his injuries." (quotations and citation omitted)), cert. denied, 498 U.S. 848 (1990). Cf. Mohn v. Marla Marie, Inc., 625 F.2d 900 (9th Cir.1980). The Jones Act extends to a seaman the statutory rights accorded railway employees under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51, et seq., and courts may look to cases decided under FELA in construing the Jones Act. Lies v. Farrell Lines, Inc., 641 F.2d 765, 770 (9th Cir.1981). For FELA instructions, see Chapter 6 ("Federal Employers’ Liability Act").
7.3 JONES ACT NEGLIGENCE CLAIM—NEGLIGENCE DEFINED
Negligence under the Jones Act 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 the circumstances.
7.4 JONES ACT NEGLIGENCE CLAIM—CAUSATION DEFINED
Negligence under the Jones Act is a cause of an injury if it played any part, no matter how slight, in bringing about the injury or damage, even if the negligence operated in combination with the acts of another, or in combination with some other cause.
See Ribitzki v. Canmar Reading & Bates, Ltd. Partnership, 111 F.3d 658, 662 (9th Cir.1997) ("even the slightest negligence" is sufficient to support a Jones Act finding of negligence) (citing Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9th Cir.1993)). This test is often described as a "featherweight causation standard" and allows a seaman to survive summary judgment by presenting even the slightest proof of causation. Ribitzki, 111 F.3d at 664.
The causal requirements for Jones Act negligence and under the doctrine of unseaworthiness are different. See Lies v. Farrell Lines, 641 F.2nd 765, 769 n.7 (9th Cir.1981). Separate causation instructions, therefore, will be necessary where both claims for relief are asserted.
7.5 UNSEAWORTHINESS CLAIM—ELEMENTS AND BURDEN OF PROOF
On the plaintiff’s unseaworthiness claim, the plaintiff has the burden of proving the following elements by a preponderance of the evidence:
1. the plaintiff was a seaman;
2. the [name of vessel] was unseaworthy; and
3. the unseaworthy condition was a cause of an injury or damage to the plaintiff.
If you find the plaintiff has proved all the elements on which [he] [she] has the burden of proof, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.
"A shipowner has an absolute duty to furnish a seaworthy ship." Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549 (1960). A seaworthy ship is one reasonably fit for its intended use. Ribitzki v. Canmar Reading & Bates, Ltd. Partnership, 111 F.3d 658 (9th Cir.1997).
See also Comment to Instruction 7.6 (Unseaworthiness Defined).
7.6 UNSEAWORTHINESS DEFINED
A vessel owner has a duty to provide and maintain a seaworthy vessel. [That duty cannot be delegated 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].
A vessel owner has a duty to provide adequate safety equipment for the vessel. However, the owner of the vessel is not required to furnish an accident-free ship. A vessel owner is not called on to have the best parts and equipment, or the finest of crews, but is required to have what is reasonably proper and suitable for its intended use, and a crew that is reasonably competent and adequate.
For a definition of a seaworthy vessel, see Ribitzki v. Canmar Reading & Bates, Ltd. Partnership, 111 F.3d 658, 664 (9th Cir.1997) and Havens v. F/T Polar Mist, 996 F.2d 215, 217–18 (9th Cir.1993).
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). But see Mitchell v. Trawler Racer, 362 U.S. 539, 550 (1960) (no obligation to furnish accident-free ship).
A vessel may be unseaworthy because of "defective" crew members. Pashby v. Universal Dredging Corp., 608 F.2d 1312, 1313–14 (9th Cir.1979) (violent or assaultive crew members may make vessel unseaworthy).
7.7 UNSEAWORTHINESS—CAUSATION DEFINED
The definition of causation for the plaintiff's unseaworthiness claim is different from that for the Jones Act negligence claim.
Unseaworthiness is a cause of injury or damage if it was a substantial factor in bringing about injury or damage.
A different test for causation applies to an unseaworthiness claim as compared to a Jones Act negligence claim. See Ribitzki v. Canmar Reading & Bates, Ltd. Partnership, 111 F.3d 658, 665 (9th Cir.1997) (causation is established for an unseaworthiness claim by showing the condition was a "substantial factor" in causing the injury). Where both Jones Act negligence and unseaworthiness claims exist, the court should instruct on the causal requirements for each. See Lies v. Farrell Lines, 641 F.2d 765, 769 n.7 (9th Cir.1981).
7.8 JONES ACT NEGLIGENCE OR UNSEAWORTHINESS—DAMAGES—PROOF
See Instruction 5.1 (Damages—Proof).
Punitive damages are not available. See Glynn v. Roy Al Boat Management Corp., 57 F.3d 1495, 1505 (9th Cir.1995), cert. denied, 516 U.S. 1046 (1996).
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) (citing Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525 (9th Cir.1962)).
"Maintenance and cure" is a separate general maritime law doctrine, not arising from the Jones Act or doctrine of unseaworthiness. It is not tied to the period that the plaintiff would have worked aboard ship, but extends to the point of maximum cure. See Instruction 7.11 (Maintenance and Cure—Elements and Burden of Proof).
7.9 JONES ACT NEGLIGENCE OR UNSEAWORTHINESS—PLAINTIFF’S NEGLIGENCE—REDUCTION OF DAMAGES
If you decide that the plaintiff has established by a preponderance of the evidence that the plaintiff is entitled to recover under [the Jones Act negligence claim] [and/or] [the unseaworthiness claim], then you must determine whether the plaintiff’s own negligence was a cause of the plaintiff’s injury or damage. The defendant has the burden of proving by a preponderance of the evidence that the plaintiff was negligent and that the plaintiff’s negligence was also a cause of the plaintiff’s injury or damage.
The plaintiff has a duty to use the care which a reasonably prudent person would use under similar circumstances. The defendant must prove by a preponderance of the evidence that the plaintiff’s failure to use such care contributed in some way to bringing about the plaintiff’s injury.
If you decide that the plaintiff was negligent and that the plaintiff’s negligence was a cause of the plaintiff’s injury, you must then decide to what extent the injury was caused by the plaintiff’s negligence. This should be fixed as a percentage—for example, 10%, 50%, 90%. The percentage of the plaintiff’s negligence, if any, is for you to decide. You must then write that percentage on the appropriate place on the verdict form. Do not make any reduction in the amount of damages that you award to the plaintiff. I will reduce the damages that you award by the percentage of negligence that you assign to the plaintiff.
See 46 U.S.C. § 30104 (common-law rights or remedies in cases of personal injury to railway employees applies to a seaman injured in the course of employment); 45 U.S.C. § 53 (contributory negligence will not bar a railroad employee from suing the employer for tort damages).
Section 53 of the Federal Employers’ Liability Act, 45 U.S.C. § 53, which provides for a reduction in the plaintiff’s damages as a result of the plaintiff’s comparative negligence, is applicable to actions under both the Jones Act and general maritime law. See Fuszek v. Royal King Fisheries, 98 F.3d 514, 516 (9th Cir.1996), Kopczynski v. The Jacqueline, 742 F.2d 555, 557–58 (9th Cir.1984), cert. denied, 471 U.S. 1136 (1985). See also Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408–09 (1953) ("admiralty has developed and now follows its own fairer and more flexible rule which allows such consideration of contributory negligence in mitigation of damages as justice requires"); Glynn v. Roy Al Boat Management Corp., 57 F.3d 1495 (9th Cir.1995).
There is no controlling legal authority on the level of plaintiff’s causation required to trigger a reduction of damages for plaintiff’s negligence. See Instruction 7.4, the"featherweight" causation instruction for a Jones Act negligence claim (Jones Act Negligence Claim—Causation Defined) and Instruction 7.7, the "substantial factor" causation instruction for an unseaworthiness claim (Unseaworthiness—Causation Defined). In the only reported judicial decision the committee could find that addressed the question directly, R. Bunting v. Sun Company, Inc., 434 Pa.Super 404; 643 A.2d 1085 (1994), a Pennsylvania state appellate court held that a reduction of damages for plaintiff’s negligence under the Jones Act is permitted where plaintiff is shown to have played any part, no matter how slight, in bringing about the injury or damage (featherweight causation). See also Norfolk Southern Ry. Co. v. Sorrell, 549 U.S. 158, 171 (2007) (under FELA, the same standard of causation applies to a plaintiff’s comparative negligence as to defendant’s negligence).
Comparative negligence is not applicable if a seaman is injured as a result of a defendant’s violation of Coast Guard regulations. See Fuszek v. Royal King Fisheries, Inc., 98 F.3d at 517.
A seaman who follows a supervisor’s urgent call to the crew for help cannot be found contributorily negligent. Simenoff v. Hiner, 249 F.3d 883, 890–91 (9th Cir.2001).
7.10 JONES ACT NEGLIGENCE OR UNSEAWORTHINESS—PLAINTIFF’S COMPLIANCE WITH DEFENDANT’S REQUEST OR DIRECTIONS
A plaintiff may not be found 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.
Use this instruction only where the plaintiff’s compliance with an employer’s request or direction is an issue. Under the "primary duty" doctrine, "a seaman-employee may not recover from his employer for injuries caused by his own failure to perform a duty imposed on him by his employment." California Home Brands, Inc. v. Ferreira, 871 F.2d 830, 836 (9th Cir.1989).
The primary duty rule is not applicable "where a seaman is injured by a dangerous condition that he did not create and, in the proper exercise of his employment duties, could not have controlled or eliminated." See Bernard v. Maersk Lines, Ltd., 22 F.3d 903, 907 (9th Cir.1994).
A seaman who follows a supervisor’s urgent call to the crew for help cannot be found contributorily negligent. Simenoff v. Hiner, 249 F.3d 883, 890–91 (9th Cir.2001).
7.11 MAINTENANCE AND CURE—ELEMENTS AND BURDEN OF PROOF
On the plaintiff’s maintenance and cure claim, the plaintiff has the burden of proving each of the following elements by a preponderance of the evidence:
1. the plaintiff was a seaman;
2. the plaintiff was injured or became ill while in the service of the vessel; and
3. the amount of maintenance and cure to which the plaintiff was entitled.
If you find the plaintiff has proved each of the elements on which [he] [she] has the burden of proof, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.
Maintenance is the reasonable cost of food, lodging, and transportation to and from a medical facility. The plaintiff is not entitled to maintenance while hospitalized because hospitalization includes food and lodging.
The rate of maintenance includes the cost of obtaining room and board on land. In determining this amount you may consider the actual costs incurred by plaintiff, but shall not award an amount in excess of that of a seaman living alone in plaintiff’s locality.
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.
[Where the defendant’s failure to provide [maintenance] [[and] [or]] [cure] worsens the plaintiff’s injury, the plaintiff may recover resulting damages and expenses, including pain and suffering, and additional medical expenses.]
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. [A plaintiff may not recover for maintenance [and] [or] cure where the illness or injury results from the plaintiff’s own willful misbehavior.]
The plaintiff is entitled to receive maintenance and cure even though he was not injured as a result of any negligence on the part of his employer or any unseaworthy condition of the vessel. The plaintiff is entitled to recover maintenance and cure from the date of departure from the ship to the time of maximum cure under the circumstances. Maximum 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 the plaintiff. If you find that the plaintiff is entitled to an award of damages under [the Jones Act negligence claim] [under the unseaworthiness claim], and if you include medical expenses in the damage award relating to either of these claims, then cure cannot be awarded for the same expenses.
See Lipscomb v. Foss Maritime Co., 83 F.3d 1106, 1108 (9th Cir.1996); Gardiner v. Sea–Land Serv., 786 F.2d 943, 945–46 (9th Cir.), cert. denied, 479 U.S. 924 (1986); Kopczynski v. The Jacqueline, 742 F.2d 555, 557–58 (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, 989–90 (9th Cir.1987).
Only "medical expenses" would be duplicative of "cure." As the Ninth Circuit has explained, "the maintenance obligation is independent of that to compensate for lost wages and exists without regard to the fact that lost wages may be computed on the basis of employment ashore." Crooks v. United States, 459 F.2d 631, 635 (9th Cir.1972); see also Colburn v. Bunge Towing, Inc., 883 F.2d 372, 378 (5th Cir.1989) ("Maintenance is neither a substitute for wages nor is it to be considered in lieu of seaman’s wages, in whole or in part"..."an award of maintenance by the trial court in addition to a general damage award that includes past and future wages is proper.")
Failure to pay maintenance and/or cure when due renders the defendant liable for not only the quantum of maintenance and/or cure that was not paid, but also for any resulting harm. See Cortes v. Baltimore Insular Line, Inc. 287 U.S. 367, 371 (1932) ("If the failure to give maintenance or cure has caused or aggravated an illness, the seaman has his right of action for the injury thus done to him; the recovery in such circumstances including not only necessary expenses, but also compensation for the hurt.") The bracketed paragraph on this point should be included only where plaintiff is making a claim for such compensation.
Punitive damages are not available where payment for maintenance and cure is wrongfully denied. See Glynn v. Roy Al Boat Management Corp., 57 F.3d 1495 (9th Cir.1995), cert. denied, 516 U.S. 1046 (1996).
7.12 MAINTENANCE AND CURE—WILLFUL AND ARBITRARY FAILURE TO PAY
The plaintiff also contends the defendant willfully and arbitrarily failed to pay [maintenance] [and] [cure] when it was due. On this issue, the plaintiff must prove each of the following elements by a preponderance of the evidence:
1. the plaintiff was entitled to [maintenance] [and] [cure];
2. the defendant willfully and arbitrarily failed to provide [maintenance] [and] [cure]; and
3. the defendant’s failure to provide [maintenance] [and] [cure] resulted in injury to the plaintiff.
If you find the plaintiff has proved each of the elements on which [he] [she] has the burden of proof, you should answer "yes" on the verdict form where indicated; otherwise answer "no."
If the jury finds that the defendant willfully and arbitrarily failed to pay maintenance or cure, the plaintiff will be entitled to reasonable attorneys’ fees as determined by the court. A special interrogatory will be required. See Kopczynski v. The Jacqueline, 742 F.2d 555, 559 (9th Cir.1984) (leaving undisturbed jury’s finding on special interrogatory that defendant’s conduct was not "willful and arbitrary," and holding that plaintiff therefore was not entitled to recover attorneys’ fees.)