Common Sense Left Ashore
By Marilyn Raia
Pacific Maritime Magazine
It is refreshing to see judges recognize the principle of common sense when deciding a case. Unfortunately, sometimes seafarers leave it ashore when signing onto a vessel. After they sue for personal injuries, they may well be reminded of it by the court when a recovery is denied.
Changing a Light Bulb
In answer to the age-old question of how many people of a certain profession are needed to change a light bulb, the district court in Manu v. United States, 2018 AMC 1732 (S.D. AL 2018) determined it was one seaman. Manu was a very experienced seaman and the second engineer aboard the USNS Gordon. The chief engineer assigned him the task of "re-lamping" the vessel, that is, checking the fixtures and replacing burned out light bulbs. Manu knew a light bulb had burned out in the vessel's tech library. He got a ladder, light bulbs and his tool bag and proceeded to the tech library. As he stepped over the raised threshold with the ladder over his shoulder, his tool bag in one hand, and the light bulbs in the other hand, he tripped and fell on his shoulder, tearing his rotator cuff and breaking a bone.
Manu sued the United States alleging negligence under the Jones Act, and unseaworthiness under general maritime law. He alleged the United States was negligent in several ways including: 1) failing to assign two crewmembers to the job of changing the light bulb; 2) failing to warn him of the raised threshold; 3) failing to warn him about dim lighting in the tech library due to the burned out light bulb; and 4) failing to perform a job safety analysis on the task of replacing the burned out light bulb. The United States moved for summary judgment. The district court granted the motion and relied on the principle of common sense.
The district court began its analysis by noting that to succeed with his negligence claim, Manu had to prove the United States, as his vessel owner employer, failed to use reasonable care to provide him with a safe place to work. Further, the district court held negligence based on the failure to warn of a dangerous condition may be established if the vessel owner employer knew or should have known of a dangerous condition. However, the district court made clear a vessel owner employer does not have a duty to warn an experienced seaman on matters within common sense. The district court explained it was possible two crewmembers could have been assigned the task of changing the light bulb, which would have lightened the load Manu carried into the tech library. However, it recognized Manu could have done the task safely alone by carrying the items one at a time over the threshold and using his flashlight or headlamp, both of which he had but failed to use, to illuminate his path.
With respect to the unseaworthiness claim, the district court recognized a vessel owner employer has an absolute duty to provide its seaman employee with a seaworthy ship. That means the ship is reasonably fit for its intended purpose. The court reasoned even if the burned out light bulb were an unseaworthy condition, as the vessel's second engineer, Manu was charged with the duty to maintain the vessel. Moreover, Manu knew the lighting was dim because of the burned out light bulb. The court also noted Manu's injury did not occur while he was changing the burned out light bulb but rather when he tripped over the raised threshold carrying too many things.
Running on the Deck in the Dark
Even with excellent illumination, it is not a good idea for a seaman to run on the deck of a vessel. In Schouweiler v. Western Towboat Company, 2007 WL 4410252 (W.D. Wash. 2007), a seaman was reminded it is a worse idea to do so in the dark.
Schouweiler was a deckhand employed by Western Towboat Company aboard the tug Western Mariner which, on the day of his injury, was towing a wood-decked barge, Baranof Provider. The barge's deck had 6-inch deep lash down pockets housing padeyes. They were laid out in rows. During a tie-up of the barge at the Port of Sitka at 0300 hours, that is, in the dark, Schouweiler ran on the deck of the barge, and stepped into one of the lash down pockets, injuring his ankle. He sued Western under the Jones Act alleging it was negligent in failing to provide him with a reasonably safe place to work. Among other things, he alleged the lash down pockets should have been surrounded by yellow paint or steel diamond plating. He also alleged the vessel was undermanned, improperly lit, and not properly cleaned.
After a non-jury trial, the district court entered judgment in favor of Western. The district court agreed that a seaman's employer has a duty to provide the seaman with a reasonably safe place to work. However, it held the seaman's employer is not liable when an injury occurs during normal activities, or as a result of the risk of a seaman's work. The mere occurrence of an injury does not support a finding of liability. Rather, the seaman must prove negligence by his employer. The district court held yellow painting around the lash down pockets would not have made a difference in the dark. The court also held "there is no duty to instruct an experienced seaman on matters of common sense or to remind him of what he already knew or should have known." It noted "[n]ot to run on the deck of a cargo barge in the dark is common sense."
Not Using a Ladder When Needed
Ships ordinarily carry multiple ladders for use by seamen. The failure to seek out and use a ladder when needed was held to be a lack of common sense which deprived the injured seaman of a recovery in Grover v. American President Lines, Inc. 1995 WL 50329 (N.D. Ca. 1995)
Grover was employed as a reefer engineer aboard the containership President Roosevelt. One of his duties was to plug in the electrical cords for the reefers that were stacked two high on deck. While the vessel was loading cargo in Kaohsiung, Grover noticed an electrical cord hanging from a reefer on the second tier. It was not low enough for him to reach and plug in while he was standing on the deck. He looked around the area but did not see a portable ladder. He decided to step on a rail to try to reach the electrical cord. He grabbed onto a part of the vessel with his left hand to steady himself, and reached up and to the right with his right hand. He then felt pain in his left clavicle.
Upon a doctor's examination, it was discovered that Grover's left clavicle had not properly healed from a prior break caused by a bicycle accident. It had formed a weak "fibrous union." Grover had surgery to fix the non-union and eventually returned to work.
Grover sued his employer, American President Lines, for negligence under the Jones Act and unseaworthiness under general maritime law. He alleged American President Lines was negligent for: 1) not providing him with a ladder to use to reach the electrical cords he could not reach while standing on the deck; and 2) failing to tell him to use a ladder when electrical cords were not within his reach.
After trial, the district court entered judgment in favor of American President Lines. It held Grover did not meet his required burden of proof. He failed to demonstrate American President Lines was negligent by not reminding Grover, an experienced seaman, what he already knew or should have known. The district court also stated American President Lines' "failure to instruct plaintiff on common sense" did not play any role in his injury. Finally, the district court held the vessel was not unseaworthy. It reasoned Grover failed to show there was no ladder available for him to use and that the use of a ladder would have led to a different result.
Seamen are required to exercise common sense when performing their duties aboard ship. If they are injured and the court finds they failed to exercise common sense, a recovery will be denied.
Outside Link: https://www.pacmar.com/story/2019/01/01/maritime-law/common-sense-left-ashore/669.htm...