650. Generally

Libelant has burden of proof in action to recover damages under 46 USCS Appx § 688. Selby v United States (1959, CA2 NY) 264 F2d 632, cert den 361 US 815, 4 L Ed 2d 62, 80 S Ct 54.

Where seaman alleges 9-year history of negligent actions by employees of shipowner leading to his emotional stress, suit will be dismissed on ground that plaintiff has alleged no facts that would lead reasonable trier of fact to believe that there was foreseeable risk of emotional injury; shipowner has duty to provide safe workplace, not to keep plaintiff from rigors of job as seaman. Puthe v Exxon Shipping Co. (1993, CA2 NY) 2 F3d 480.

Seamen may maintain action against employer under Jones Act where employer’s failure to exercise reasonable care causes subsequent injury, even where employer’s negligence did not render ship unseaworthy; plaintiff’s burden of causation under Act is “featherweight”. Ferrara v A. & V. Fishing, Inc. (1996, CA1 Mass) 99 F3d 449.

Burden is on libellant to prove his injury was sustained by breach of duty owed him, and that such breach was proximate cause of his injury. Helmke v United States (1934, DC La) 8 F Supp 521, 1934 AMC 1592.

Under 46 USCS Appx § 688, plaintiff must bear burden of going forward with evidence on all essential elements of negligence action; he must prove existence of duty, negligent violation of this duty by defendant, and finally, causal relationship of violation to injury sustained. Diddlebock v Alcoa S. S. Co. (1964, ED Pa) 237 F Supp 538, 1966 AMC 444.

In order to be entitled to recovery for damages under 46 USCS Appx § 688, plaintiff must bear burden of establishing that he was seaman, that he was crew member of vessel involved, that defendant was owner pro hac vice of vessel at time of accident, that plaintiff was injured while in service of vessel, that plaintiff was employee of defendant and that negligence on part of defendant was proximate cause of plaintiff’s injuries. Martinez v Star Fish & Oyster Co. (1974, SD Ala) 386 F Supp 560.

Burden of plaintiff under 46 USCS Appx § 688 is met when plaintiff adduces any proof from which jury may with reason make inference of employer’s negligence, and it does not matter that jury may with reason find that other causes also contributed to result, including plaintiff’s contributory negligence. Perion v United Fruit Co. (1961) 226 Md 591, 174 A2d 777.

651. Degree of proof

Burden of plaintiff to prove proximate cause in action based on 46 USCS Appx § 688 is very light. Alaska S.S. Co. v Petterson (1954) 347 US 396, 98 L Ed 798, 74 S Ct 601, reh den 347 US 994, 98 L Ed 1127, 74 S Ct 848.

Burden on plaintiff to prove proximate cause in action based on 46 USCS Appx § 688 and general maritime law is very slight. Landry v Two R. Drilling Co. (1975, CA5 La) 511 F2d 138, 18 FR Serv 2d 1461, reh den (CA5 La) 517 F2d 675; Davis v Hill Engineering, Inc. (1977, CA5 Tex) 549 F2d 314, reh den (CA5 Tex) 554 F2d 1065 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).

In Jones Act case burden or plaintiff to prove causation is very light and jury is entitled to make permissible inferences from unexplained events but generally in cases submitted to jury there have been facts showing some negligence on part of employer and circumstances allowing reasonable inference that negligence caused injury or death and where court cannot draw reasonable inference that seizure caused decedent to fall overboard in absence of any recent prior history of seizures causing him to fall summary judgment granted by District Court would be affirmed. Martin v John W. Stone Oil Distributor, Inc. (1987, CA5 La) 819 F2d 547.

Jones Act employer is liable for injury to employee for even slightest negligence on its part, and seaman’s burden of proving causation is “featherweight”. Gautreaux v Scurlock Marine (1996, CA5 La) 84 F3d 776.

46 USCS Appx § 688 requires that libellant prove his case by preponderance of evidence. Landy v United States (1951, DC Pa) 101 F Supp 486, affd (CA3 Pa) 197 F2d 524.

Although seaman bears burden of proof on issue of negligence, burden is “featherweight.” Yelverton v Mobile Laboratories, Inc. (1985, SD Miss) 608 F Supp 400, affd (CA5 Miss) 782 F2d 555.

652. Negligence

Sufficient evidence to sustain jury verdict only requires that there be facts from which jury might infer negligence; where there is sudden departure from well-established practice of safety and both practice and departure are clearly presented by evidence, it is not also incumbent upon claimant in action under 46 USCS Appx § 688 to exclude every other hypothesis except negligence. Sanford Bros. Boats, Inc. v Vidrine (1969, CA5 La) 412 F2d 958, 13 FR Serv 2d 1116.

Disparity between penalties for trafficking in powdered cocaine and cocaine base is not grossly disproportionate to severity of offenses considering that cocaine base concentrates and magnifies effect of one gram of cocaine to such degree that dealers profitably can sell it in very cheap-yet-potent quantities, and considering that impact of crack cocaine is devastating. United States v Fisher (1994, CA5 Tex) 22 F3d 574, reh den (CA5 Tex) 1994 US App LEXIS 19818.

Gist of action under 46 USCS Appx § 688 is negligence, and burden of establishing negligence rests upon plaintiff. Walton v Continental S.S. Co. (1946, DC Md) 66 F Supp 836; Gelb v United States (1948, DC Cal) 75 F Supp 833; Carlson v Wheeler-Hallock Co. (1943) 171 Or 349, 137 P2d 1001; Premeaux v Socony-Vacuum Oil Co. (1946) 144 Tex 558, 192 SW2d 138.

Where employee of geophysical company was killed in ship explosion while engaged in use of explosives with other employees, personal representative must prove negligence of company was responsible for explosion, since employee’s negligence alone might have caused explosion. Pure Oil Co. v Geotechnical Corp. of Delaware (1951, DC La) 94 F Supp 866, 1951 AMC 553, affd (CA5 La) 196 F2d 199, 1952 AMC 727, cert den 344 US 879, 97 L Ed 681, 73 S Ct 175 and cert den 344 US 874, 97 L Ed 676, 73 S Ct 165.

Burden of proving unseaworthiness of vessel or negligence on part of shipowner is entirely upon libelant, and in addition, libelant must prove that unseaworthy condition was proximate cause of his injury, or that negligence of respondent caused in whole or in part injury complained of. Goodrich v Cargo Ships & Tankers, Inc. (1965, ED La) 241 F Supp 332, 1965 AMC 2749.

Failure of injured seaman to prove any negligence of shipowner, resulting in seaman’s fall which caused his injuries, precluded recovery of damages from shipowner. Massey v Williams-McWilliams, Inc. (1967, ED La) 277 F Supp 452, affd in part and revd in part on other grounds (CA5 La) 414 F2d 675, cert den 396 US 1037, 24 L Ed 2d 681, 90 S Ct 682 and on remand (ED La) 317 F Supp 37.

Action for negligence under 46 USCS Appx § 688 is somewhat similar to common-law action for negligence, although recovery is more liberally allowed, seaman may recover for injuries inflicted by equipment which is defective due to negligence, or by negligent actions of fellow crewmen or officers, or other agents of employer. Puamier v Barge BT 1793 (1974, ED Va) 395 F Supp 1019, 17 UCCRS 745.

Seaman has right to recover damages from his employer if employer was guilty of some negligence and such negligence played any role, no matter how slight, in producing injury; although plaintiff bears burden of proof on such issue, burden is “featherweight.” Yelverton v Mobile Laboratories, Inc. (1985, SD Miss) 608 F Supp 400, affd (CA5 Miss) 782 F2d 555.

Alleged seaman’s Jones Act (46 USCS Appx § 688) claim may proceed, where seaman loading bait locker on fishing boat broke bone in his foot when it was struck by 25-pound box of frozen squid, because quantum of evidence need not be substantial to support finding of Jones Act negligence, and duty to provide seaworthy vessel includes providing adequate crew as whole and providing for individual tasks to be performed. Tran v Captain Glyn, Inc. (1995, DC Hawaii) 909 F Supp 727.

In suit under 46 USCS Appx § 688, seaman assumes burden of proving negligence. Curtis Bay Towing Co. v Dean (1938) 174 Md 498, 199 A 521, 1938 AMC 851, cert den 305 US 628, 83 L Ed 402, 59 S Ct 92.

653. Employer-employee relationship

Decedent’s status as seaman for purposes of suit under 46 USCS Appx § 688 was conclusively determined when it was alleged in libel that at time of his death decedent was seaman on steamship and there was nothing anywhere in pleadings contradictory of this allegation and no amendment was asked or allowed. United States v Lindgren (1928, CA4 Va) 28 F2d 725, affd 281 US 38, 74 L Ed 686, 50 S Ct 207.

Seaman suing owner of vessel for injuries received on vessel as result of negligence of cook, while vessel was chartered to another had burden of proving by preponderance of evidence that both he and cook were in employment of owner and that he was injured as result of negligence of cook. Osland v Star Fish & Oyster Co. (1941, CA5 Ala) 118 F2d 772, 1941 AMC 792, cert den 314 US 615, 86 L Ed 495, 62 S Ct 86, reh den 314 US 716, 86 L Ed 570, 62 S Ct 477.

To recover under 46 USCS Appx § 688, plaintiff must prove himself employee of defendant and must also prove that his injury arose in course of that employment. Bergan v International Freighting Corp. (1958, CA2 NY) 254 F2d 231.

Primary prerequisite to any recovery under statutory scheme of compensation provided by 46 USCS Appx § 688 is establishment by seaman of employer-employee relationship with defendant. Haskins v Point Towing Co. (1970, CA3 Pa) 421 F2d 532, cert den 400 US 834, 27 L Ed 2d 66, 91 S Ct 68.

Jones Act (46 USCS Appx § 688) claim on behalf of deceased person is denied summarily, where defendant corporation has proven through affidavit evidence that it is not employer of seamen, even though representative produced unauthenticated document purporting to be Social Security earnings statement showing corporation’s contribution in person’s behalf, because necessary proof of person’s employment as seaman is missing. Miller v American Foreign S.S. Corp. (1995, ED Tex) 902 F Supp 118.

Proof of employer-employee relationship is essential before plaintiff can prevail on count based on 46 USCS Appx § 688. Silva v Brown (1946) 319 Mass 466, 66 NE2d 349.

In suit under 46 USCS Appx § 688, plaintiff has burden of proving by competent evidence not only that he was injured as alleged, but that he was employee of defendant or that vessel on which he was injured was owned or operated by defendant. Lykes Bros.-Ripley S. S. Co. v Pluto (1940, Tex Civ App) 146 SW2d 414, writ dismd.

654. –Evidence of payments under 33 USCS § § 901 et seq.

In action brought under 46 USCS Appx § 688, in which principal issue was whether, in view of nature of work, plaintiff at time of injury was seaman or offshore drilling employee, trial court committed prejudicial error when it permitted introduction of evidence that plaintiff had accepted benefits under 33 USCS § § 901 et seq. Tipton v Socony Mobil Oil Co. (1963) 375 US 34, 11 L Ed 2d 4, 84 S Ct 1, 1963 AMC 2276, reh den 375 US 936, 11 L Ed 2d 268, 84 S Ct 328.

In damage action brought under Jones Act (46 USCS Appx § 688) trial court did not err in excluding evidence that plaintiff had previously applied for benefits under LHWCA (33 USCS § § 901 et seq.) notwithstanding that evidence was offered as admission against interest on question whether plaintiff was seaman. Essary v Louisiana Dock Co. (1978, 5th Dist) 66 Ill App 3d 182, 22 Ill Dec 923, 383 NE2d 731.

655. Causation

Burden on plaintiff to prove proximate cause in action based on 46 USCS Appx § 688 is very light; jury in such cases is entitled to make permissible inferences from unexplained events, whether case is brought under 46 USCS Appx § 688 or under general maritime law. Alaska S.S. Co. v Petterson (1954) 347 US 396, 98 L Ed 798, 74 S Ct 601, reh den 347 US 994, 98 L Ed 1127, 74 S Ct 848.

In action under 46 USCS Appx § 688, burden is on plaintiff to establish by preponderance of evidence that negligence of defendant caused or was substantial factor in causing plaintiff’s illness. Rey v Colonial Nav. Co. (1941, CA2 NY) 116 F2d 580.

In meeting burden of proving negligence on part of ship owner, libelant must prove not only that equipment or absence of which he complains, was required as part of ship owner’s duty of care toward him, but that accident which resulted in his injury was caused proximately by its absence. Repsholdt v United States (1953, CA7 Ill) 205 F2d 852, cert den 346 US 901, 98 L Ed 401, 74 S Ct 226, reh den 346 US 928, 98 L Ed 420, 74 S Ct 308.

To recover under 46 USCS Appx § 688, plaintiff must show that negligent act or omission of defendant caused, in whole or in part, injury or death for which plaintiff sues. Miller v Farrell Lines, Inc. (1957, CA2 NY) 247 F2d 503, cert den 355 US 912, 2 L Ed 2d 273, 78 S Ct 342; Smith v Reinauer Oil Transport, Inc. (1958, CA1 Mass) 256 F2d 646, cert den 358 US 889, 3 L Ed 2d 117, 79 S Ct 133; Fitzgerald v A. L. Burbank & Co. (1971, CA2 NY) 451 F2d 670, 14 ALR Fed 525; Colombo v Texas Co. (1956, DC NY) 140 F Supp 496; Goodrich v Cargo Ships & Tankers, Inc. (1965, ED La) 241 F Supp 332; Spearing v Manhattan Oil Transp. Corp. (1974, SD NY) 375 F Supp 764, 19 FR Serv 2d 33.

Mere fact that injury to seaman claimant occurred on ship does not, in itself, establish unseaworthiness and neither does proof of fact of unseaworthiness, ipso facto, provide proof of causation; when vessel disappears in expectable weather under otherwise unknown circumstances, proof by claimants of some element of unseaworthiness will permit trier of fact to infer that unseaworthiness was proximate cause of loss. Re Marine Sulphur Queen (1972, CA2 NY) 460 F2d 89, cert den 409 US 982, 34 L Ed 2d 246, 93 S Ct 318, 93 S Ct 326.

In case under 46 USCS Appx § 688 there is no liability without some proof of fault and claimant must show facts from which jury can reasonably infer that either employer or co-workers were negligent. Traupman v American Dredging Co. (1972, CA2 NY) 470 F2d 736.

In order to prevail plaintiff must show that either unseaworthiness of vessel or negligence of shipowner proximately caused his injury. Shephard v S/S Nopal Progress (1974, CA5 La) 497 F2d 963, reh den (CA5 La) 502 F2d 1167, and reh den (CA5 La) 502 F2d 1168 and cert den 420 US 937, 43 L Ed 2d 414, 95 S Ct 1147.

Even though Jones Act (46 USCS Appx § 688) plaintiff has only minimal or featherweight burden to satisfy before his case may be taken to jury, he must still in some way show causal connection between injury and some omission or commission by shipowner or condition which renders ship unseaworthy. Caldwell v Manhattan Tankers Corp. (1980, CA5 La) 618 F2d 361.

Plaintiff has duty to connect origin of disease for which he sues under 46 USCS Appx § 688 with his employer. Diddlebock v Alcoa S.S. Co. (1964, ED Pa) 237 F Supp 538.

Seaman has right to recover damages from his employer if employer was guilty of some negligence and such negligence played any role, no matter how slight, in producing injury; although plaintiff bears burden of proof on such issue, burden is “featherweight.” Yelverton v Mobile Laboratories, Inc. (1985, SD Miss) 608 F Supp 400, affd (CA5 Miss) 782 F2d 555.

656. –Particular circumstances

Although vessel owner and docking company may have permitted some unsafe conditions to exist in and about dock, jury could not reasonably infer that such conditions played any part, even slightest, in death of seaman whose drowned body was discovered some distance from dock where there was no evidence at all of causation nor were circumstances sufficient to warrant inference of causation and there was no concession by defendants ruling out other causes of death. Quam v Mobil Oil Corp. (1979, CA2 NY) 599 F2d 42, cert den 444 US 950, 62 L Ed 2d 321, 100 S Ct 423.

In action by seaman to recover damages for injury to eye on ground that ship was negligent in not furnishing him with goggles while chipping rust, libellant had burden of proving that present existing cataract was caused by particles of rust. Haddock v North Atlantic & Gulf S.S. Co. (1948, DC Md) 81 F Supp 421.

Ship’s pilot injured in fall from accommodation ladder during egress from ship is awarded $ 15,155 for loss of earnings, $ 875 for medical expenses, and $ 7,600 for pain and suffering and loss of life’s enjoyment, and prejudgment interest in amount of 8 percent per annum from September 10, 1989 fall to present under 46 USCS Appx § 688, where shipowner’s negligence caused pilot to fall and hit launch, fracturing his nose and triggering severe aggravation of pre-existing motor neuron disease, because no doctor has been able to provide definitive diagnosis of pilot’s neurological condition, which has completely debilitated him, so that award for aggravation of disease is just too speculative and damages are limited to those resulting from nose fracture. Evans v United Arab Shipping Co. (1992, DC NJ) 790 F Supp 516.

657. Pecuniary loss

In action for death when beneficiaries are parents of adult child, pecuniary loss must be alleged and proved. Cleveland Tankers, Inc. v Tierney (1948, CA6 Ohio) 169 F2d 622, 1949 AMC 151.

Burden of proof is upon parents to prove amount of pecuniary loss as result of death of adult son. Petition of United States (1950, DC NY) 92 F Supp 495, 1951 AMC 112.

658. Pain and suffering

There must be substantial evidence in action brought under 46 USCS Appx § 688 to recover for pain and suffering to show that decedent was conscious before his death, so as to be able to experience pain and suffering between wrongful injury and death. Davis v Parkhill-Goodloe Co. (1962, CA5 Fla) 302 F2d 489, 5 FR Serv 2d 853 (disagreed with Deal v A.P. Bell Fish Co. (CA5 La) 728 F2d 717).

Recovery for conscious pain and suffering experienced by decedent prior to death is recoverable under 46 USCS Appx § 688; in cases involving drowning, courts generally have required evidence of struggle or other post-accident consciousness on part of decedent before awarding damages for his pain and suffering prior to death; no recovery for conscious pain and suffering will be allowed absent substantial evidence of proof that decedent was conscious following mishap and prior to his death. Thompson v Offshore Co. (1977, SD Tex) 440 F Supp 752. (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).

659. Seaman’s status

In Jones Act suit, plaintiff has burden of proof on issue of his status as seaman. Yelverton v Mobile Laboratories, Inc. (1985, SD Miss) 608 F Supp 400, affd (CA5 Miss) 782 F2d 555.

Party seeking recovery under Jones Act bears burden of proving that he was seaman within meaning of statute at time of injury. Hines v Saylor Marine Corp. (1985, SD Ga) 615 F Supp 33.

660. Other issues

Under 46 USCS Appx § 688, burden is on plaintiff to obtain findings on necessary element of foreseeability of harm. Harms Marine Service, Inc. v Swiere (1966, Tex Civ App Beaumont) 411 SW2d 602, writ ref n r e, cert den 389 US 899, 19 L Ed 2d 223, 88 S Ct 227.