441. Common law defenses

Common law defenses to assault are available to employer in action under 46 USCS Appx § 688 for assault on plaintiff. Escandon v Pan American Foreign Corp. (1937, CA5 Tex) 88 F2d 276.

442. –Last clear chance

In action under 46 USCS Appx § 688 to recover for injuries sustained while employed as seaman on vessel, it was for jury to determine whether crew of ship involved in collision had last clear chance. Curtis Bay Towing Co. of Virginia, Inc. v Mansfield (1953, CA4 Va) 207 F2d 859.

443. Fraud

Defendant’s contention that plaintiff committed “fraud” in failing to reveal prior injury and surgery, which vitiates his employment contract and destroys his claim under 46 USCS Appx § 688, was not available because dominant Congressional policy of compensating injured workers overrides alleged fraud in forming employment relationship. Compton v Luckenbach Overseas Corp. (1970, CA2 NY) 425 F2d 1130, 14 FR Serv 2d 165, cert den 400 US 916, 27 L Ed 2d 155, 91 S Ct 175.

444. Miscellaneous defenses

Jones Act seaman who is injured while performing seaman’s work aboard ship owner’s vessel, in which he is not crew member, cannot sue ship owner for unseaworthiness on same theory that longshoreman can sue nonemploying shipowner, but can sue for breach of duty. Smith v Harbor Towing & Fleeting, Inc. (1990, CA5 La) 910 F2d 312, reh den, en banc (CA5) 1990 US App LEXIS 18755.

Defense of independent contractor was not expressly abolished by 46 USCS Appx § 688, nor does language in § 688 impliedly have that effect as to incidental matters such as cleaning of oil tanks. Pietryzk v Dollar S.S. Lines, Ltd. (1939) 31 Cal App 2d 584, 88 P2d 783.

Even if defense of unavoidable accident is available in 46 USCS Appx § 688 cases predicated upon negligence, if evidence does not raise issue that something other than negligence of party to event caused injury, issue on unavoidable accident should not be submitted to jury. Continental Oil Co. v Lindley (1964, Tex Civ App Houston (1st Dist)) 382 SW2d 296, writ ref n r e.

Suit may not be brought against state or state universities in its own courts under 46 USCS Appx § 688 without its consent; waiver of immunity is matter for legislature to determine. Lyons v Texas A & M University (1976, Tex Civ App Houston (14th Dist)) 545 SW2d 56, writ ref n r e.