Commercial Shipping and the Jones Act

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1 Commercial Shipping and the Jones Act William H. Armstrong Armstrong & Associates LLP 1 Kaiser Plaza, Suite 625 Oakland, CA (510) (510) [fax]

2 William H. Armstrong has tried over 60 cases to juries, involving commercial disputes, asbestos bodily injury claims, product liability and maritime claims including Jones Act and the Longshore and Harbor Workers Compensation Act. He assists with the annual update of Effective Introduction of Evidence published by the California CEB. He has presented the defense attorneys perspective for the Toxic Harms seminar at his alma mater, Stanford Law School.

3 Commercial Shipping and the Jones Act Table of Contents Presentation Commercial Shipping and the Jones Act Armstrong 461

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5 Presentation I. INTRODUCTION The Jones Act (46 U.S.C ) extends to seamen the rights railroad workers have under the Federal Employers Liability Act (FELA), 45 U.S.C. 51. It permits a seaman to sue his or her employer for personal injuries caused by the employer s negligence. A seaman may also bring a non-statutory claim for unseaworthiness, which is a breach warranty claim based on contract theory: the vessel owner owes a duty to provide a reasonably suitable vessel and appliances. See, Cox v. Esso Shipping Co. ( th Cir.) 247 F.2d 629, 637. The determination of what is reasonable depends on a comparison of what conditions and practices existed on the vessel in question with those customarily followed and found in the industry at the time. See, American President Lines, Ltd. v. Redfern ( th Cir.) 345 F.2d 629, 631. The Jones Act does not apply to seamen while they serve in the U.S. Navy. Injuries to those military seamen are governed by the Death on the High Seas Act (DOHSA). Shoreside workers who perform repairs to the vessel may be entitled to sue the vessel for injuries pursuant to the Longshore and Harbor Workers Compensation Act (LHWCA). This panel discussion focuses on the Jones Act. II. WHO IS A SEAMAN UNDER THE JONES ACT? The Jones Act applies to persons who are employed by the vessel, permanently attached to and a member of a crew of a vessel in navigation. 46 U.S.C ; See, Offshore Co. v. Robison, (5th Cir. 1959) 266 F.2d 769. Some situations create questions whether the site is a vessel or whether it is in navigation. For example, a ship under construction is not a vessel (see Cain v. Transocean Offshore USA, Inc. 518 F.3d 295 ( th Cir.), cert. denied 555 U.S. 880 (2008). A ship that is under repair in drydock may be in navigation if it is undergoing repairs in preparation for the next voyage, but at some point the repairs may become sufficiently significant that the vessel can no longer be considered in navigation. See, Chandris, Inc. v. Latsis, 515 U.S. 347, 374 (1995). Drilling rigs that float are vessels, but if they are tied to the sea floor they are not. See, Overstreet v. Transocean Offshore, Inc U.S. Dist. LEXIS (E.D. La. 1998). III IF THE SEAMAN DIES, WHO MAY BRING A WRONGFUL DEATH CLAIM? The personal representative of the decedent is the proper plaintiff. 46 U.S.C. IV. NEGLIGENCE IN COMMERCIAL SHIPPING CASES While ship construction was a nexus of concern about asbestos exposures since at least World War II ( ), until the mid-1970 s there was virtually no concern about asbestos being a hazard to merchant seaman performing normal duties. U.S. Coast Guard Commercial Shipping and the Jones Act Bill Armstrong Commercial Shipping and the Jones Act Armstrong 463

6 regulations required that insulation be of approved incombustible materials (NVIC 4-67, 5 June 1967) which as implemented meant asbestos. In 1978 the Marine Engineers Beneficial Association (MEBA) published articles raising concerns about asbestos exposure in its newsletter to members. The U.S. Coast Guard issued Commandant Instruction on 24 July 1979 implementing its Asbestos Exposure Control Program. On 13 March 1980 the Coast Guard issued NVIC 5 80 on Recommended Procedures for Control of Asbestos Hazard on Board Merchant Vessels, etc. In that time frame, many shipowners conducted air sampling on board their merchant ships, to quantify what exposures were created during normal operations. Many of those samples were reviewed and a summary published in Murbach, et al., Airborne Concentrations of Asbestos Onboard Maritime Shipping Vessels ( ), Annals of Occupational Hygiene 52: (2008). The average airborne concentration of asbestos PCM area samples (n = 1018) was fibers/cc. Those measurements do not relate to repair work, but to normal operations while underway. V. CAUSATION UNDER THE JONES ACT The Jones Act prescribes a special standard for causation; Plaintiff needs to show that the negligence was a cause, however slight, of the injury. See, Rogers v. Missouri Pacific Ry. Co., 352 U.S. 500, 506 (1957). VI. DAMAGES UNDER THE JONES ACT In a Jones Act case, the calculation of lost income stream must deduct amounts the wage earner would have been required to pay, such as income tax and work expenses, from the gross earnings at the time of injury. Jones & Laughlin Steel Corp. v. Pfeifer (1983) 462 U.S. 523, 534. See also Paquette v. Atlanska-Plovidba ( th Cir.) 701 F.2d 746, 748 (upholding use of jury instruction stating that award would not be subject to income taxes). Maritime law permits no recovery for loss of consortium or loss of society as part of a seaman s claims under the Jones Act. See, Miles v. Apex Marine Corp., (1990) 494 U.S. 1003; Glynn v. Roy Al Boat Management Corp. (9 th Cir. 1995) 57 F.3 rd 1495, 1502; Michel v. Total Transportation, Inc. (5 th Cir. 1992) 957 F.2 nd 186. Maritime law permits the personal representative to recover in a wrongful death action an amount for the pain and suffering of decedent. VII. SETTLEMENT OFFSETS UNDER THE JONES ACT Although liability is joint and several for all damages, the trial defendant is liable only for its proportional fault compared to the settling defendants and (if pertinent) the plaintiff or decedent. That proportionate share is determined according to the trier of fact s assessment of the relative responsibility for the damage; the amount actually paid by any settling defendant is Commercial Shipping and the Jones Act Bill Armstrong 464 Asbestos Medicine November 2013

7 irrelevant. See, United States v. Reliable Transfer Co., (1975) 421 U.S. 397, 411; McDermott, Inc. v. Amclyde and River Don Castings Ltd., (1994) 511 U.S. 202, 217; Vaughn v. Farrell Lines, Inc., (1991 4th Cir.) 937 F.2d 953. The trial defendant therefore needs to know which defendants have settled, but does not need to know what was paid. A waiver of costs is probably sufficient to make that defendant a settling defendant, and if the trial defendant can show culpability on the part of that settling defendant, the jury may assign a percentage of responsibility to that settling defendant. There is no clear indication what maritime law will do with respect to a bankruptcy trust payment, or the plaintiff s unexercised right to such a payment. Commercial Shipping and the Jones Act Bill Armstrong Commercial Shipping and the Jones Act Armstrong 465

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