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 that 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.

Comment

            See 46 U.S.C. § 30104 (extending common-law rights or remedies in cases of personal injury to railway employees to seaman injured in course of employment); 45 U.S.C. § 53 (stating that contributory negligence will not bar railroad employee from suing 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). 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").

            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 Instructions 7.4 (Jones Act Negligence Claim—Causation Defined) and 7.7 (Unseaworthiness—Causation Defined). In the only reported judicial decision the Committee could find that addressed the question directly, R. Bunting v. Sun Co., 434 Pa. Super. 404, 643 A.2d 1085 (1994), a Pennsylvania state appellate court held that a reduction of damages for a plaintiff’s negligence under the Jones Act is permitted when the plaintiff is shown to have played any part, no matter how slight, in bringing about the injury or damage (featherweight causation). See also Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 171 (2007) (holding that, under FELA, same standard of causation applies to 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 MacDonald v. Kahikolu Ltd., 442 F.3d 1199, 1202 (9thCir.2006); Fuszek, 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).