TITLE 46. APPENDIX. SHIPPING
CHAPTER 18. MERCHANT SEAMAN
PROTECTION AND RELIEF
46 USCS Appx § 688 (2002)

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SECTIONS § 001- 036

I. IN GENERAL

A. General Principles

1. Generally

Tort doctrine under which liability for violation of statutory duty is imposed only where injury is one which statute was designed to prevent, does not apply in actions under 46 USCS Appx § 688; Congress, in 46 USCS Appx § 688, enacted statute of general terms, leaving in large measure to courts duty of fashioning remedies for injured employees in manner analogous to development of tort remedies at common law. Kernan v American Dredging Co. (1958) 355 US 426, 2 L Ed 2d 382, 78 S Ct 394.

46 USCS Appx § 688 aptly illustrates involvement of commerce power and power over maritime matters. Petty v Tennessee-Missouri Bridge Com. (1959) 359 US 275, 3 L Ed 2d 804, 79 S Ct 785.

By 46 USCS Appx § 688, Congress has afforded seamen modified common law remedy for negligent injury where modifications are in favor of employee. De Zon v American President Lines, Ltd. (1942, CA9 Cal) 129 F2d 404, affd 318 US 660, 87 L Ed 1065, 63 S Ct 814, reh den 319 US 780, 87 L Ed 1725, 63 S Ct 1025.

Seaman-employee has only one claim and recovery for same accident against his employer under 46 USCS Appx § 688. Hickman v Ohio Barge Line, Inc. (1974, WD Pa) 376 F Supp 1092.

Congress has authority to subject state to suit under Jones Act (46 USCS Appx § 688) because admiralty and maritime powers of Congress are exclusive. Brody v North Carolina (1983, ED NC) 557 F Supp 184.

Insurer is denied summary dismissal of seaman's claim, where he asserts that definition of "tort liability" found in section (f) of commercial general liability policy clearly covers his sustained injuries, because Jones Act (46 USCS Appx § 688) suit is for tort and is liability imposed by law. Nahan v Pan Am Grain Mfg. Co. (1999, DC Puerto Rico) 62 F Supp 2d 419.

2. Constitutionality

46 USCS Appx § 688 is not unconstitutional as invading admiralty jurisdiction or denying due process. Panama R. Co. v Johnson (1924) 264 US 375, 68 L Ed 748, 44 S Ct 391, 1924 AMC 551.

Constitutional authority of Congress to provide remedy for seamen injured in ship's service derives from its authority to regulate commerce under USCS Constitution, Art. 1, § 8, cl. 3, and its power to make laws which shall be necessary and proper to carry into execution powers vested in government or any department of it under USCS Constitution, Art. 1, § 8, cl. 18, including judicial power extending to all cases of admiralty and maritime jurisdiction. O'Donnell v Great Lakes Dredge & Dock Co. (1943) 318 US 36, 87 L Ed 596, 63 S Ct 488, 1943 AMC 149.

46 USCS Appx § 688 is not unconstitutional as attempting to interfere with intrastate commerce on navigable waters of states. McCullough v Jannson (1923, CA9 Or) 292 F 377, error dismd 267 US 608, 69 L Ed 812, 45 S Ct 350.

46 USCS Appx § 688 does not unconstitutionally delegate power to states to declare the rights and liabilities arising out of maritime injury, because it resorts to domestic relations laws of states in aid of defining statutory beneficiaries in death actions. Bell v Tug Shrike (1963, ED Va) 215 F Supp 377, 1963 AMC 897, affd (CA4 Va) 332 F2d 330, 1964 AMC 2396, cert den 379 US 844, 13 L Ed 2d 49, 85 S Ct 84.

3. Purpose

Language of 46 USCS Appx § 688 discloses no intention to impose upon shipowners same measure of liability for injuries suffered by crew while at sea as common law prescribes for employers in respect to their employees on shore. Chelentis v Luckenbach S.S. Co. (1918) 247 US 372, 62 L Ed 1171, 38 S Ct 501.

Purpose of 46 USCS Appx § 688 is to enlarge, not to narrow, protection afforded to seamen by maritime law. The Arizona v Anelich (1936) 298 US 110, 80 L Ed 1075, 56 S Ct 707, reh den 298 US 692, 80 L Ed 1409, 56 S Ct 945.

Congressional purpose of 46 USCS Appx § 688 is benefit and protection of seamen, who are peculiarly wards of admiralty. Cox v Roth (1955) 348 US 207, 99 L Ed 260, 75 S Ct 242.

General congressional intent behind 46 USCS Appx § 688 was to provide liberal recovery for injured workers and not to create static remedy, but one which would be developed and enlarged to meet changing conditions and changing concepts of industry's duty toward its workers. Kernan v American Dredging Co. (1958) 355 US 426, 2 L Ed 2d 382, 78 S Ct 394.

46 USCS Appx § 688 is intended to achieve uniformity in exercise of admiralty jurisdiction by giving seamen federal right to recover from their employers for negligence regardless of location of injury or death. Moragne v States Marine Lines, Inc. (1970) 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906.

Collective bargaining agreement which includes plan benefits, does not evade intent of 46 USCS Appx § 688, which denounces devices to exempt employer from any liability to seamen. Thomas v Humble Oil & Refining Co. (1970, CA4 Va) 420 F2d 793, 1970 AMC 25 (disagreed with Haughton v Blackships, Inc. (CA5 Tex) 462 F2d 788) as stated in Clark v Burlington Northern, Inc. (CA8 Neb) 726 F2d 448.

Remedies afforded by 46 USCS Appx § 688 and maintenance and cure are designed to protect those who perform services upon ship and are exposed to unique hazards of work upon sea; benefits should be available to anyone so engaged, even if not in employ of ship itself. Mahramas v American Export Isbrandtsen Lines, Inc. (1973, CA2 NY) 475 F2d 165.

46 USCS Appx § 688 was enacted to provide remedial and welfare legislation for protection of seaman and his dependents. Diddlebock v Alcoa S.S. Co. (1964, ED Pa) 237 F Supp 538, 1966 AMC 444.

By establishing negligence standard of liability for claims by seamen injured in course of their employment, 46 USCS Appx § 688 not only affords protection to seaman, but indirectly to passengers whose well-being is entrusted to vessel's crew; where vast majority of vessel's passengers are consistently American citizens, United States has interest in extending its law to protect vessel's foreign crew from injuries which might in turn affect safety of passengers, especially when corporate structure which runs, and ultimately benefits from vessel's extensive American business has substantial business presence in this country and competes directly with American vessels which are bound by American law. Mattes v National Hellenic American Line, S. A. (1977, SD NY) 427 F Supp 619.

Purpose of 46 USCS Appx § 688 and its incorporation by reference of 45 USCS § § 51 et seq. was to bar consideration of plaintiff's contributory negligence in action for injury to or death of seaman resulting from employer's violation of safety statute. Rodriguez v B-R Dredging Co. (1977, Tex Civ App Corpus Christi) 552 SW2d 601, revd on other grounds (Tex) 564 SW2d 693.

4. Scope of coverage

With respect to action brought, under federal admiralty jurisdiction, by mother of individual who was killed while doing sandblasting work on vessel berthed in navigable waters of United States and within state's territorial waters--where fatal accident was allegedly due in part to negligence of shipbuilding corporation for which individual's employer was subcontractor--the negligent breach of general maritime duty of care is actionable when such negligence causes death. Norfolk Shipbuilding & Drydock Corp. v Garris (2001) 532 US 811, 150 L Ed 2d 34, 121 S Ct 1927, 2001 CDOS 4514, 2001 Daily Journal DAR 5549, 2001 AMC 1817, 2001 Colo J C A R 2759, 14 FLW Fed S 305.

Recovery for occupational diseases is permitted under Jones Act (46 USCS Appx § 688). Barger v Baltimore (1980, CA4 Md) 616 F2d 730, cert den 449 US 834, 66 L Ed 2d 39, 101 S Ct 105.

Although Jones Act does not focus on location of vessel at time of injury, Jones Act jurisdiction still requires relationship to navigable waters; thus, ship with no connection to navigable waters is not source of Jones Act jurisdiction. Weaver v Hollywood Casino-Aurora, Inc. (2001, CA7 Ill) 255 F3d 379.

46 USCS Appx § 688 confers both action for wrongful death of member of crew and an action by survivors for any damages he suffered before death. Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, on other grounds 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).

Crew members of cruise vessel have no viable Jones Act (46 USCS Appx § 688) claim, even though they were physically detained and unable to leave their cabins for 2 days under suspicion of narcotics trafficking, because Act does not encompass false arrest and false imprisonment. Richards v Royal Caribbean Cruises, Ltd. (1999, DC Puerto Rico) 118 F Supp 2d 150.

Employer is under duty to provide seaman with reasonably safe place to work, and liability under Jones Act is shown if seaman can show his injuries were result of even slightest negligence of his employer. Ellender v Texaco, Inc. (1982, La App 3d Cir) 425 So 2d 291.

Under 46 USCS Appx § 688, seaman injured in course of his employment may maintain action at law for damages with right of trial by jury. Sanz v Isbrandtsen Co. (1949) 196 Misc 390, 88 NYS2d 486.

5. --Exclusions

False arrest and false imprisonment are not covered by 46 USCS Appx § 688. Forgione v United States (1953, CA3 Pa) 202 F2d 249, cert den 345 US 966, 97 L Ed 1384, 73 S Ct 950.

While it is true that seamen have long been treated as wards of admiralty courts, it is also true that, under 46 USCS Appx § 688, shipowner is not liable for any and all injuries that befall them. Broussard v Marine Transport Lines, Inc. (1974, ED Tex) 369 F Supp 103.

Unique protections provided by general maritime law to seamen are remedies for physical dangers and hazards of working at sea and do not apply to age discrimination claims. Belanger v Keydril Co. (1984, ED La) 596 F Supp 823, 36 BNA FEP Cas 132, 36 CCH EPD P 35137, affd without op (CA5 La) 772 F2d 902, 41 BNA FEP Cas 64.

Injured seaman's action against master of ship on which he was injured must be summarily denied, where seaman complains of captain's negligence in leaving incompetent person at wheel who allowed vessel to proceed full speed into jetties, because there is no right of action under general maritime law or 46 USCS Appx § 688 against vessel's master for unseaworthiness or negligence. Kennedy v Gulf Crews, Inc. (1990, WD La) 750 F Supp 214.

6. Construction

46 USCS Appx § 688, remedial statute, is to be liberally construed in order to carry out its full purpose of protecting its wards. Warner v Goltra (1934) 293 US 155, 79 L Ed 254, 55 S Ct 46.

Provisions of 46 USCS Appx § 688 are to be liberally construed to obtain purpose of section, and are to be interpreted in harmony with established doctrine of maritime law of which it is integral part. The Arizona v Anelick (1936) 298 US 110, 80 L Ed 1075, 56 S Ct 707, reh den 298 US 692, 80 L Ed 1409, 56 S Ct 945.

46 USCS Appx § 688 is to have uniform application throughout country unaffected by local views of common-law rules. Garrett v Moore-McCormack Co. (1942) 317 US 239, 87 L Ed 239, 63 S Ct 246, 1942 AMC 1645.

"Service of the ship" formula, used in maintenance and cure cases, is equivalent of provision under 46 USCS Appx § 688 for personal injury coverage for seaman injured in "course of employment," and decisions in maintenance and cure cases dealing with whether injury occurred in "the service of the ship" are relevant guides to meaning of term "course of employment" as used in 46 USCS Appx § 688. Braen v Pfeifer Oil Transp. Co. (1959) 361 US 129, 4 L Ed 2d 191, 80 S Ct 247.

Provisions of 46 USCS Appx § 688 are applicable only to specific class of actions--claims by seamen against their employers--based on violations of special standard of negligence which has been imposed under Federal Employers' Liability Act (45 USCS § § 51 et seq.). Moragne v States Marine Lines, Inc. (1970) 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906.

46 USCS Appx § 688 should be interpreted to achieve results which are consistent with those of admiralty law. Lopoczyk v Chester A. Poling, Inc. (1945, CA2 NY) 152 F2d 457.

Limits under 46 USCS Appx § 688, incorporating Federal Employers' Liability Act (45 USCS § § 51 et seq.) by reference, are broadly drawn and broadly construed and employer may be held liable if his negligence played any part, even slightest, in producing injury or death for which damages are sought. Hampton v Magnolia Towing Co. (1964, CA5 Miss) 338 F2d 303, 1965 AMC 248.

46 USCS Appx § 688 is not to be construed as workmen's compensation statute. Lamon v Standard Oil Co. (1954, DC La) 117 F Supp 831.

State courts are required to adopt constructions placed on 46 USCS Appx § 688 by federal courts. Spencer v Beadle S.S. Co. (1934, Cal App) 40 P2d 273, superseded 4 Cal 2d 313, 48 P2d 678, affd 298 US 124, 80 L Ed 1082, 56 S Ct 712.

Intent of Congress in enacting 46 USCS Appx § 688 was to make applicable to seafaring occupation only such features of Federal Employers' Liability Act (45 USCS § § 51 et seq.) as were not already expressly covered by Death on High Seas Act (46 USCS Appx § § 761 et seq.). Re Rademaker's Estate (1938) 166 Misc 201, 2 NYS2d 309, 1938 AMC 396.

7. --With other laws

46 USCS Appx § 688 is remedial legislation which calls for liberal construction, and clearly is intended to cover later changes in Federal Employers' Liability Act (45 USCS § § 51 et seq.). Chisholm v Cherokee-Seminole S.S. Corp. (1940, DC NY) 36 F Supp 967, 1940 AMC 1580.

Value of limitation fund should be increased to account for appurtenances--all things on board for object of voyage--and 89 barges involved in conduct of ship owner's marine transportation venture, where underlying suit is brought by representatives of 6 crew members killed in engine room fire under 46 USCS Appx § 688, because "flotilla doctrine" is applicable here, and inclusion of appurtenances in appraisal of value of limitation fund is well-recognized rule of admiralty law. Re Waterman S.S. Corp. (1992, ED La) 794 F Supp 601, 1992 AMC 2658, reconsideration den (ED La) 1992 US Dist LEXIS 12886, later proceeding (ED La) 1992 US Dist LEXIS 14827.

Survivors of deceased pleasure boaters may recover nonpecuniary damages under general maritime law, where 2 nonseamen on pleasure craft died in collision with tow barge on Ohio River, and decedents' representatives sought nonpecuniary damages from owner of tow boat, because Jones Act, 46 Appx USCS § 688, does not apply to nonseamen, and reasons of justice and humanitarianism suggest that persons injured in maritime jurisdiction should receive compensation for losses if compensation is not specifically precluded by statute. In re Morehead Marine (1994, SD Ohio) 844 F Supp 1193.

B. Relationship to Other Available Remedies

1. Traditional Maritime Remedies

8. Generally

Since 46 USCS Appx § 688 is integral part of maritime law, rights fashioned by it are to be implemented by admiralty rules not inconsistent with 46 USCS Appx § 688. Garrett v Moore-McCormack Co. (1942) 317 US 239, 87 L Ed 239, 63 S Ct 246, 1942 AMC 1645.

46 USCS Appx § 688 does not change general maritime law. Hanrahan v Pacific Transport Co. (1919, CA2 NY) 262 F 951, cert den 252 US 579, 64 L Ed 726, 40 S Ct 345.

There is no separation of 46 USCS Appx § 688 from admiralty law and § 688 should be interpreted to achieve results which are consistent with those of admiralty law; proceeding under 46 USCS Appx § 688 is to be governed by principles familiar to in personam admiralty actions; election is between alternatives accorded by maritime law as modified. Lopoczyk v Chester A. Poling, Inc. (1945, CA2 NY) 152 F2d 457.

All "substantive" issues arising out of maritime claims are controlled by maritime law regardless of form or forum of suit. Larios v Victory Carriers, Inc. (1963, CA2 NY) 316 F2d 63, 1963 AMC 1704.

Unlike law of unseaworthiness, which focuses on conditions of vessel, Jones Act places distinct duty on owner to provide reasonably safe work place; under Jones Act, plaintiff is entitled to go to jury if proof justifies conclusion that employer negligence played even slightest part in producing injury. Oxley v New York (1991, CA2 NY) 923 F2d 22.

Claim under either Jones Act or unseaworthiness doctrine is fundamentally single cause of action, by remedies under other; if no damages are permitted under Jones Act, unseaworthiness claim cannot supply them either. Szymanski v Columbia Transp. Co. (1998, CA6 Ohio) 154 F3d 591, 1998 FED App 270P.

Jones Act (46 USCS Appx § 688) does not preclude recovery under general maritime law in suit by wife for loss of husband's society resulting from nonfatal injuries allegedly sustained aboard vessel on high seas, regardless of whether nonfatal injuries were sustained in territorial waters or on high seas; Jones Act also does not provide remedy for loss of society, whether seaman's injuries occurred on high seas or within territorial waters. Carollo v Global Cape Ann Corp. (1986, DC Mass) 627 F Supp 1507.

Seaman's claim for punitive damages based on unseaworthiness of vessel under general maritime law fails to state claim as matter of law, where seaman in water beside dive boat helping customers adjust their diving gear was injured when customer wearing scuba tank fell on top of him, because allowance of punitive damages on general maritime claim brought in conjunction with 46 USCS Appx § 688 negligence claim--for which punitive damages are precluded--would destroy uniformity of maritime remedies sought to be established by recent Supreme Court ruling. La Voie v Kualoa Ranch & Activity Club, Inc. (1992, DC Hawaii) 797 F Supp 827, 1992 AMC 1493.

9. Modification of maritime law

Injuries to seaman are governed by maritime law as modified by 46 USCS Appx § 688. Jamison v Encarnacion (1930) 281 US 635, 74 L Ed 1082, 50 S Ct 440; The Arizona v Anelich (1936) 298 US 110, 80 L Ed 1075, 56 S Ct 707, reh den 298 US 692, 80 L Ed 1409, 56 S Ct 945; Beadle v Spencer (1936) 298 US 124, 80 L Ed 1082, 56 S Ct 712.

46 USCS Appx § 688, by enlarging injured seaman's remedy, did not go beyond modification of substantive rules of maritime law well within scope of admiralty jurisdiction whether vessel, plying navigable waters, be engaged in interstate commerce or not. O'Donnell v Great Lakes Dredge & Dock Co. (1943) 318 US 36, 87 L Ed 596, 63 S Ct 488, 1943 AMC 149.

Under 46 USCS Appx § 688, without any interference with seaman's rights in admiralty, new and enlarged rules for recovery of compensatory damages for personal injuries may be invoked by seaman for tortious acts of his employer in course of employment. Van Camp Sea Food Co. v Nordyke (1944, CA9 Cal) 140 F2d 902, 1944 AMC 559, cert den 322 US 760, 88 L Ed 1587, 64 S Ct 1278.

Effect of 46 USCS Appx § 688 is to enable seamen to maintain action for damages at law for personal injuries which formerly were within exclusive jurisdiction of maritime courts; 46 USCS Appx § 688 increases remedies available to seamen but does not enlarge jurisdiction of federal district courts. Rowley v Sierra S.S. Co. (1942, DC Ohio) 48 F Supp 193, 1943 AMC 1025.

Extent of liability of owners of tug, for death of seaman who was drowned when tug on which he was employed capsized was governed by maritime law of United States supplemented by 46 USCS Appx § 688. Hickman v Taylor (1947, DC Pa) 75 F Supp 528, 1947 AMC 1614, affd (CA3 Pa) 170 F2d 327, 1949 AMC 292, cert den 336 US 906, 93 L Ed 1071, 69 S Ct 485, reh den 336 US 921, 93 L Ed 1083, 69 S Ct 636.

Under general maritime law seaman is entitled to maintenance, cure, and damages as result of shipowner's failure to furnish seaworthy vessel, which rights have been enlarged by 46 USCS Appx § 688 to entitle seaman to damages for injury and death as result of injury received in course of employment as result of employer's negligence. Alaska Packers Asso. v Alaska Industrial Board (1950, DC Alaska) 88 F Supp 172, affd (CA9 Alaska) 186 F2d 1015.

10. Maintenance and cure

Obligations of maintenance and cure do not rest upon negligence or culpability on part of owner or master and are not restricted to those instances where seaman's employment is cause of injury or illness. Calmar S.S. Corp. v Taylor (1938) 303 US 525, 82 L Ed 993, 58 S Ct 651; Aguilar v Standard Oil Co. (1943) 318 US 724, 87 L Ed 1107, 63 S Ct 930.

Seamen is entitled to maintenance while on accumulated leave time, paid vacation, absent explicit contractual provision specifying that accumulated leave time pay or other wages is to be deemed substitute for maintenance. Morel v Sabine Towing & Transp. Co. (1982, CA5) 669 F2d 345, 9 Fed Rules Evid Serv 1592.

Shipowner's failure to pay maintenance and cure not only gives rise to claim therefore, it supports cause of action under Jones Act for breach of duty. Garay v Carnival Cruise Line, Inc. (1990, CA11 Fla) 904 F2d 1527, reh den, en banc (CA11) 1990 US App LEXIS 19248.

Seaman is entitled to maintenance and cure payments in addition to any damages for negligence he might obtain under Jones Act. Staninslawski v Upper River Servs. (1993, CA8 Minn) 6 F3d 537.

Although neither Jones Act nor Death on High Seas Act permits recovery of punitive damages, court will not deem it controlling in context of maintenance and cure, which is essentially form of workers' compensation-like employee benefit, and without counterpart in either Jones Act or DOHSA. Guevara v Maritime Overseas Corp. (1994, CA5 Tex) 34 F3d 1279.

Seaman's right to receive, and shipowner's duty to pay, maintenance and cure is independent of any other source of recovery, including from Jones Act claim. Bertram v Freeport McMoran, Inc. (1994, CA5 Tex) 35 F3d 1008.

Consequential damages for failure to pay maintenance and cure are not limited to claims under Jones Act; thus, district court properly awarded seaman lost wages, damages for pain and suffering, and prejudgment interest arising from employer's failure to pay maintenance and cure. Deisler v McCormack Aggregates (1995, CA3 NJ) 54 F3d 1074.

Failure to pay maintenance and cure is cognizable under both Jones Act and general maritime law, although action under Jones Act requires personal injury as well. Guevara v Maritime Overseas Corp. (1995, CA5 Tex) 59 F3d 1496.

Seaman, injured when he fell from top of storage tank while hooking it to crane, is not entitled to recover maintenance payments for 3 years he was disabled due to accident, where he has already received wages plus fringe benefits, which included food and lodging as part of his general damage award under Jones Act (46 USCS Appx § 688) and general maritime law, because recovery of this item of damage under vessel owner's maintenance and cure obligation would be double recovery and is not allowed. Averett v Diamond Offshore Drilling Servs. (1997, ED La) 980 F Supp 855.

11. Unseaworthiness

Under doctrine of seaworthiness, vessel's duty to furnish seamen with tools reasonably fit for their intended use is absolute duty, which is completely independent of owner's duty under 46 USCS Appx § 688 to exercise reasonable care. Michalic v Cleveland Tankers, Inc. (1960) 364 US 325, 5 L Ed 2d 20, 81 S Ct 6.

Although Moragne v States Marine Lines (1970) 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, which held that action will lie under general maritime law for death caused by violations of maritime duties, involved alleged breach of duty of seaworthiness and thus technically left open issue of wrongful death action for negligence, there is no rational basis for distinguishing negligence from seaworthiness, as avoidance of negligence is no less distinctively maritime duty. Norfolk Shipbuilding & Drydock Corp. v Garris (2001) 532 US 811, 150 L Ed 2d 34, 121 S Ct 1927, 2001 CDOS 4514, 2001 Daily Journal DAR 5549, 2001 AMC 1817, 2001 Colo J C A R 2759, 14 FLW Fed S 305.

Included in concept of seaworthiness is owner's duty to provide competent crew. American President Lines, Ltd. v Redfern (1965, CA9 Cal) 345 F2d 629.

Shipowner's liability to seamen under principle of seaworthiness does not arise from contract. Hudson Waterways Corp. v Schneider (1966, CA9 Cal) 365 F2d 1012, 1966 AMC 2411.

Seaworthiness requires only that vessel be manned by adequate number of men who know their business; if someone is injured solely by reason of act of omission on part of any member of crew found to be possessed of competence of his calling, there can be no recovery unless act or omission is proved to be negligent. Price v SS Yaracuy (1967, CA5 La) 378 F2d 156, on remand (ED La) 306 F Supp 638, 13 FR Serv 2d 1092.

Although strict liability is imposed upon shipowner to furnish seaworthy vessel, risk that availability of marijuana aboard vessel would lead to its use by seaman, resulting in his arrest and incarceration, is not within those risks from which doctrine of seaworthiness was developed to protect seamen. Faraola v O'Neill (1978, CA9 Cal) 576 F2d 1364.

Failure to instruct about use of life preservers and failure to provide working bathroom resulted in unseaworthiness of vessel as matter of law under 46 USCS Appx § 688. Deal v A. P. Bell Fish Co. (1982, CA5 La) 674 F2d 438, later app (CA5 La) 728 F2d 717.

Dismissal of action by seaman who was scalded when automatic valve on ship's boiler failed is proper where seaman claimed that failure of valve made ship unseaworthy, where seaworthiness is matter of whether ship and appurtenances are reasonably fit for intended use, and where boiler lines, though fitted with imperfect valves, are nevertheless still fit for their intended use. Jordan v United States Lines, Inc. (1984, CA1 Mass) 738 F2d 48.

12. --Relationship to negligence action

Negligence and unseaworthiness are not equivalent; finding of negligence is neither substitute foundation for, nor finding of, unseaworthiness. Royal Mail Lines, Ltd. v Peck (1959, CA9 Cal) 269 F2d 857.

Jury would have to find unseaworthiness in action brought under 46 USCS Appx § 688 and for unseaworthiness, where it found negligence resulting from defective equipment in absence of contested issue of proximate cause; in defective equipment cases, concept of unseaworthiness "swallows" any notion of liability based upon maritime negligence; evidentiary showing required to establish negligence also establishes unseaworthiness because former requires actual or constructive knowledge while latter is without regard to fault or use of due care. Lee v Pacific Far East Line, Inc. (1977, CA9 Cal) 566 F2d 65.

46 USCS Appx § 688 negligence and unseaworthiness are 2 distinct claims and individual acts of negligence do not always create conditions of unseaworthiness; there is no requirement that because jury returned verdict finding negligence in § 688 proceeding that it should have also returned verdict finding unseaworthiness. Thezan v Maritime Overseas Corp. (1983, CA5 La) 708 F2d 175, cert den 464 US 1050, 79 L Ed 2d 189, 104 S Ct 729.

In seaman's personal injury suit against employer steamship company in which seaman asserted that incident on which suit is based gave rise to negligence action under Jones Act (46 USCS Appx § 688) and action under general admiralty law and maritime law for unseaworthiness of vessel, jury's findings for seaman on negligence claim and for steamship company on unseaworthiness claim can be harmonized, since jury could have found that although steamship company was negligent in allowing deck of vessel to be made slippery, flooding of deck did not make vessel unseaworthy. Kokesh v American S.S. Co. (1984, CA6 Mich) 747 F2d 1092.

Although facts that give rise to unseaworthiness claims sometimes support Jones Act negligence claims, each is distinct claim. Springborn v American Commercial Barge Lines, Inc. (1985, CA5 La) 767 F2d 89 (disagreed with by multiple cases as stated in Nix v Kansas City S. R. Co. (CA5 Tex) 776 F2d 510).

Claims brought for death of seaman under 46 USCS Appx § 688 cannot be maintained by simply showing that vessel was unseaworthy, unless such unseaworthiness was result of negligence. The William A. McKenney (1930, DC Mass) 41 F2d 754.

Unseaworthiness under general maritime law and negligence under 46 USCS Appx § 688 give rise to separate and distinct causes of action and may be combined to bring about same result without showing of prior or constructive notice on part of shipowner. Madsen v United States (1960, ED Pa) 186 F Supp 577, 1960 AMC 1741.

Any distinction between negligence under 46 USCS Appx § 688 and unseaworthiness has all but disappeared; unseaworthiness may result from negligent operation of vessel, and it is proper to plead the two causes of action together. Puamier v Barge BT 1793 (1974, ED Va) 395 F Supp 1019, 17 UCCRS 745.

Injured harbor worker's exclusive remedy is action for negligence against United States as ship owner under 33 USCS § 905(b), where worker was shore based employee of shore based company which only worked on ship while it was tied to dock, because worker could not be classified as "seaman" so as to give rise to Jones Act (46 USCS Appx § 688) liability since worker was not aboard vessel primarily to aid in navigation. Spearman v United States (1988, ED Pa) 690 F Supp 1435.

Ship's cook's Jones Act (46 USCS Appx § 688) claim against vessel owners is dismissed in part, where cook slipped and fell some 300 feet from vessel on unlighted stairway on land that was sole means by which he could reach grocery store, because failure of ship's personnel to use searchlight on stairs is not enough to show liability for unseaworthiness but may support negligence claim. Salamon v Motor Vessel Poling Bros. No. 11, Inc. (1990, ED NY) 751 F Supp 343, reh den (ED NY) 1991 US Dist LEXIS 1937.

Injured deckhand's cause of action alleging liability for unseaworthiness on part of boat owner is denied summarily, where owner bare boat chartered vessel to deckhand's employer on June 15, 1987 and deckhand injured his back while moving heavy equipment on boat on December 28, 1988, because owner of vessel is not liable for unseaworthiness originating and causing injury while bare boat charterer is operating ship. Quiming v International Pacific Enterprises, Ltd. (1990, DC Hawaii) 773 F Supp 230.

Negligence under 46 USCS Appx § 688 is completely independent ground of recovery from judicial admiralty action for unseaworthiness, and finding of employer's negligence is unrelated to shipowner's duty to provide seaworthy vessel. Brown & Root, Inc. v Wade (1974, Tex Civ App Houston (14th Dist)) 510 SW2d 408, writ ref n r e.

13. ----Absolute nature of duty of seaworthiness

Owner's duty to furnish seaworthy ship is absolute and completely independent of his duty under 46 USCS Appx § 688 to exercise reasonable care, and that duty is no less onerous with respect to unseaworthy condition arising after vessel leaves her home port, nor is it any less with respect unseaworthy condition which may be only temporary. Mitchell v Trawler Racer, Inc. (1960) 362 US 539, 4 L Ed 2d 941, 80 S Ct 926, 1960 AMC 1503 (superseded by statute as stated in Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).

Responsibility of owner for seaworthy ship and safe equipment is absolute and not due to 46 USCS Appx § 688. Roberts v United Fisheries Vessels Co. (1944, CA1 Mass) 141 F2d 288, 1944 AMC 599, cert den 323 US 753, 89 L Ed 603, 65 S Ct 81.

Negligent failure to comply with absolute duty to furnish seaworthy vessel allows 46 USCS Appx § 688 to apply to injury resulting from such unseaworthiness. Fall v Esso Standard Oil Co. (1961, CA5 Fla) 297 F2d 411, 1962 AMC 951, cert den 371 US 814, 9 L Ed 2d 55, 83 S Ct 24.

In interpreting and applying damages provision of Warsaw Convention, 49 USCS § 1502, air crash, court will not look solely to Death on High Seas Act, 46 USCS Appx § § 761 et seq., and Jones Act, 46 USCS Appx § 688, under both of which recovery is to limited pecuniary damages, but will look to broad language of Convention itself, and hold that Convention permits awards for loss of society and companionship. In re Air Disaster at Lockerbie Scot. (1994, CA2 NY) 37 F3d 804, 40 Fed Rules Evid Serv 318.

Absolute duty of shipowner to furnish seaworthy ship is completely independent of any duty under 46 USCS Appx § 688 to exercise reasonable care, and breach of later duty can aggravate, or lead to, breach of former; in view of this and fact that furnishing ship which is unseaworthy raises rebuttable presumption of causation when ship is lost at sea, similar presumption must also arise with regard to negligence. Re Marine Sulphur Transport Corp. (1970, SD NY) 312 F Supp 1081, affd in part and revd in part on other grounds (CA2 NY) 460 F2d 89, cert den 409 US 982, 34 L Ed 2d 246, 93 S Ct 318, 93 S Ct 326.

Concept of seaworthiness effectively swallows up negligence approach under 46 USCS Appx § 688 because it is absolute and does not require showing of fault. Curry v United States (1971, ND Cal) 327 F Supp 155, supp op (ND Cal) 338 F Supp 1219.

Vessel's food manager is entitled to summary judgment on his unseaworthiness claim, where vegetable cook suddenly and unexpectedly threw ketchup bottle at manager, who fractured left forearm in shielding himself from unprovoked attack, because record supports finding that cook had such dangerous propensity toward violence that it rendered vessel unseaworthy. Wiradihardja v Bermuda Star Line, Inc. (1992, SD NY) 802 F Supp 989.

Employee's voluntary dismissal under FRCP 41(a)(2) of his federal-law claim against his employer precludes litigation of subsequent state-law claim, where first action charged defendants with federal violation and is virtually identical to current action arising from same nucleus of operative facts but charges violations of state claims, because plaintiff's state-law claim could have been litigated by federal court and in granting Rule 41(a)(2), which allows dismissal conditioned on terms and conditions, court made no indication that it would not have considered state claim on merits if it had been asserted. Fitzgerald v Alleghany Corp. (1995, SD NY) 882 F Supp 1433, 4 AD Cas 575.

Claim based on owner's breach of duty to provide seaworthy vessel and appliances is not same as one based on negligence, but is of nature of absolute liability. Taylor v Central R. Co. (1959, 1st Dept) 9 App Div 2d 101, 191 NYS2d 690.

2. Remedies Provided by Federal Statute

14. Federal Employees' Compensation Act (5 USCS § § 8101 et seq.)

Federal Employees' Compensation Act (5 USCS § § 8101 et seq.) is not exclusive remedy of civilian crew member injured through negligence of operators of merchant, as distinguished from public vessel wholly owned by United States, but he may maintain action under 46 USCS Appx § 688. Inland Waterways Corp. v Doyle (1953, CA8 Mo) 204 F2d 874, 1953 AMC 2148.

Contention that Federal Employees Compensation Act (FECA) does not provide exclusive remedy for seamen employed by TVA is without merit, since express language of FECA demonstrates Congressional intent that remedies provided thereunder were exclusive of all other liability of United States or instrumentality, even in regard to those individuals employed by federal agencies empowered under terms of their enabling legislation to sue and be sued. Turner ex rel. Turner v Tennessee Valley Authority, Owner of The Lucy E. (1988, CA6 Tenn) 859 F2d 412.

Wrongful death suit by widow of deckhand employed by Tennessee Valley Authority was barred by exclusivity provision of Federal Employees Compensation Act, 5 USCS § 8116. Hutchins by Hutchins v TVA (1996, CA11 Ala) 98 F3d 602, 10 FLW Fed C 518.

Federal Employees Compensation Act (5 USCS § § 8101 et seq.) did not afford the sole and exclusive remedy to plaintiff against his employer the defendant, Panama Canal Company, for injuries sustained in course of his employment as member of crew of vessel owned and operated by it, and defendant was subject to suit under Jones Act [this section]. Cordero v Panama Canal Co. (1959, DC NY) 170 F Supp 234.

Exclusive remedy for death or injury of crew members employed on vessel by wholly-owned governmental agency, Inland Waterways Corporation, was under Federal Employees' Compensation Act (5 USCS § § 8101 et seq.). Petition of United States by Inland Waterways Corp. (1962, ED La) 212 F Supp 214, affd (CA5 La) 342 F2d 799, cert den 382 US 831, 15 L Ed 2d 75, 86 S Ct 70.

Civil service seaman's action against U.S. for injuries suffered while serving on Navy vessel is precluded under 46 USCS Appx § 688, because his exclusive remedy is under Federal Employees' Compensation Act (5 USCS § 8102(a)), notwithstanding allegation that he was told he was not entitled to benefits under Act. White v Marine Transport Lines, Inc. (1989, ED Tex) 711 F Supp 335.

Jones Act (46 Appx. USCS § 688) claim by estate of federally employed seaman, killed in boating accident, against government is barred under 5 USCS § 8116(c); exclusive remedy is under Federal Employees Compensation Act (5 USCS § § 8101 et seq.). Turner v Tennessee Valley Authority (1986, MD Tenn) 651 F Supp 233.

15. Longshore and Harbor Worker's Compensation Act (33 USCS § § 901 et seq.)

Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) superseded 46 USCS Appx § 688 in its application to longshoremen, but applies only where injury occurs upon navigable waters of United States, which means states, territories and District of Columbia, but not Canal Zone. Panama Agencies Co. v Franco (1940, CA5 Canal Zone) 111 F2d 263, 1940 AMC 1456.

Machinist who repaired equipment on board car ferry primarily while ferries were sailing between ports was not limited to remedies available under Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) and was permitted recovery under Jones Act. Petersen v Chesapeake & O. R. Co. (1986, CA6 Mich) 784 F2d 732.

Wire line operator who was not permanently assigned to specific drilling platform but spent 30 percent of his time on oil production vessels, and was injured while off loading tool box, and who received compensation under LHWA was in fact covered by LHWA and therefore not eligible to sue employer under Jones Act. Fontenot v AWI, Inc. (1991, CA5 La) 923 F2d 1127.

Jones Act and Longshore and Harbor Worker's Act are mutually exclusive; workers cannot be both seamen and longshoremen, and employee whose occupation is expressly enumerated in LHWA will not be considered seaman. Easley v Southern Shipbuilding Corp. (1991, CA5 La) 936 F2d 839.

Cases decided under Jones Act with respect to presumption against extraterritoriality do not require exemption of Longshore and Harbor Workers Compensation Act from such presumption. Kollias v D & G Marine Maintenance (1994, CA2) 29 F3d 67.

Although double recovery of any damage element under Long Shore Harbor Workers Compensation Act, 33 USCS § 902, and Jones Act is prohibited, and although acts are "mutually exclusive", some maritime workers may be Jones Act seamen who are injured while also performing job specifically enumerated under LHWCA and are therefore entitled to recovery under both statutes. Figueroa v Campbell Indus. (1995, CA9 Cal) 45 F3d 311, 95 CDOS 352, 95 Daily Journal DAR 619, 1995 AMC 793, companion case, remanded (1995, CA9 Cal) 1995 US App LEXIS 765.

Right of crew member of vessel to proceed under 46 USCS Appx § 688 and general maritime law is basic right which should not be withheld from employee because of relief afforded by Longshore and Harbor Workers' Act (33 USCS § § 901 et seq.) Boyles v Humble Oil & Refining Co. (1962, ED La) 209 F Supp 857.

Longshoreman who was in employ of defendant corporation which operated and controlled steamship in hold of which longshoreman was injured, and who had received benefits under Longshore and Harbor Workers' Act (33 USCS § § 901 et seq.) had no cause of action under 46 USCS Appx § 688. Aycock v Lykes Bros. S.S. Co. (1964, SD Tex) 236 F Supp 360, 1964 AMC 1883.

Injured employee has 5 days in which to file second amended complaint under Longshore and Harbor Workers' Compensation Act (LHWCA) (33 USCS § § 901 et seq.) against barge owner/employer, where plaintiff was injured while attempting to couple railway cars on barge moored at defendant's boatyard on American side of Detroit River, because plaintiff was injured while performing as "conductor" upon actual navigational waters of United States, making LHWCA provide exclusive remedy so that claims under general admiralty and maritime law, Jones Act (46 USCS Appx § 688), Safety Appliance Act (45 USCS § § 1 et seq.), and Federal Employer's Liability Act (45 USCS § § 51 et seq.) are dismissed. Le Blanc v Norfolk & W. R. Co. (1986, ED Mich) 673 F Supp 208.

Worker's action for injuries under Jones Act (46 USCS § 688) is dismissed where worker was engaged in loading vessel at time of injury, since such activity is traditional duty of longshoreman, and worker who is engaged in occupation specifically included in Longshore and Harbor Worker's Compensation Act (33 USCS § § 901 et seq.) is ineligible for Jones Act benefits. Thibodeaux v Torch, Inc (1987, WD La) 674 F Supp 1240.

If employer fails to secure payment of compensation, employee has at his election all rights of action that he would have had if Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) had not been passed, including right to bring under 46 USCS Appx § 688 action for damages at law. Thorneal v Cape Pond Ice Co. (1947) 321 Mass 528, 74 NE2d 5.

16. --Status of plaintiff

If oiler who was injured while working aboard defendant's vessel was seaman under 46 USCS Appx § 688 and member of crew under Longshore Act (33 USCS § § 901 et seq.), then he was free to sue under 46 USCS Appx § 688; but if he was not member of crew under Longshore Act, he must proceed under that act and was not entitled to sue under 46 USCS Appx § 688. Carumbo v Cape Cod S.S. Co. (1941, CA1 Mass) 123 F2d 991, 1942 AMC 215 (disagreed with Offshore Co. v Robison (CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))).

Finding of deputy commissioner in proceeding under Longshore and Harborworkers' Compensation Act (33 USCS § § 901 et seq.) that plaintiff was injured while performing service as member of shore staff for employer and engaged in shifting vessel from drydock, does constitute finding, for purposes of seaman's separate action under 46 USCS Appx § 688, that plaintiff was not member of crew. Hagens v United Fruit Co. (1943, CA2 NY) 135 F2d 842.

Where injured person was engaged in occupation expressly enumerated in LHWCA, such as loading and unloading cargo, and other traditional long-shoring activities, recovery under Jones Act is precluded. Campo v Electro-Coal Transfer Corp. (1990, CA5 La) 955 F2d 10.

A "seaman" [dredge deckhand] having elected to receive and accept benefits of Longshore and Harbor Workers' Compensation Act [33 USCS § § 901 et seq.], was not thereby precluded from maintaining his action under 46 USCS Appx § 688, where status of plaintiff aboard vessel in navigable waters was in serious dispute. Lawrence v Norfolk Dredging Co. (1961, ED Va) 194 F Supp 484, 1961 AMC 2034, affd (CA4 DC Va) 319 F2d 805, 1964 AMC 362, cert den 375 US 952, 11 L Ed 2d 313, 84 S Ct 443.

Claim made by plaintiff under Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) for compensation benefits did not deprive plaintiff of right to jury determination of his seaman's status under 46 USCS Appx § 688. Oliver v Ocean Drilling & Exploration Co. (1963, WD La) 222 F Supp 843, 1964 AMC 374.

Plaintiff is not collaterally estopped from seeking to be determined "seaman" within 46 USCS Appx § 688 because of prior determination of ALJ that plaintiff was covered under 33 USCS § § 901 et seq. Ramos v Universal Dredging Corp. (1982, DC Hawaii) 547 F Supp 661.

Owners and operator of oil production platform upon which employee was injured when platform collapsed in wake of hurricane are entitled to summary judgment against employee's Jones Act (46 USCS Appx § 688) claim, because (1) oil platform built on land, towed to offshore location, and not relocated in 26 years is not "vessel" and therefore employee is not Jones Act "seaman," (2) since injuries occurred on outer continental shelf, 43 USCS § 1333 calls for application of Longshoremen's and Harbor Workers' Compensation Act (LHWCA) (33 USCS § 905(a)) to employee's claim, (3) charge that failure to evacuate platform in spite of hurricane was willful and wanton misconduct did not make employee's suit intentional tort claim outside scope of LHWCA, and (4) owners and operators were joint venturers and "joint employers" of plaintiff immune from liability under LHWCA. Johnson v Odeco Oil & Gas Co. (1987, ED La) 679 F Supp 604.

Person who signed shipping articles as seaman, stevedore, and fisherman, injured while engaged in unloading operations at port of call, was entitled to recover under 46 USCS Appx § 688 as seaman rather than under Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) as stevedore. De Luca v Red Salmon Canning Co. (1934) 2 Cal App 2d 124, 37 P2d 704.

17. Federal Employers' Liability Act (45 USCS § § 51 et seq.)

Amendment of 1939 to Federal Employers' Liability Act (45 USCS § § 51 et seq.) which extended coverage to employees not directly engaged in interstate commerce, did not extend meaning of word "seaman" in 46 USCS Appx § 688. Desper v Starved Rock Ferry Co. (1952) 342 US 187, 96 L Ed 205, 72 S Ct 216, 1952 AMC 12, reh den 342 US 934, 96 L Ed 695, 72 S Ct 374.

46 USCS Appx § 688 extends to seamen same rights granted to railroad employees by Federal Employers' Liability Act (45 USCS § § 51 et seq.); words of Federal Employers' Liability Act need not be lifted bodily from their context and applied mechanically to specific facts of maritime events, but rather those contingencies against which Congress has provided to insure recovery to railroad employees should also be met in admiralty setting. Cox v Roth (1955) 348 US 207, 99 L Ed 260, 75 S Ct 242.

46 USCS Appx § 688 creates federal right of action for wrongful death of seaman based on statutory action under Federal Employers' Liability Act (45 USCS § § 51 et seq.). Kernan v American Dredging Co. (1958) 355 US 426, 2 L ed 2d 382, 78 S Ct 394.

46 USCS Appx § 688, by expressly providing for seaman cause of action granted to railroad workers by Federal Employers' Liability Act (45 USCS § § 51 et seq.), provides for entire doctrine of liability judicially developed under latter Act; 46 USCS Appx § 688, by incorporation of Federal Employers' Liability Act and decisions thereunder, permits recovery for death of seaman resulting from violation of statutory duty, even in absence of any showing of negligence. Kernan v American Dredging Co. (1958) 355 US 426, 2 L Ed 2d 382, 78 S Ct 394.

46 USCS Appx § 688 effectively obliterates all distinctions between kinds of negligence for which ship owner is liable to his employees, as well as limitations imposed by fellow-servant doctrine, by extending to seamen remedies made available to railroad workers under Federal Employers' Liability Act (45 USCS § § 51 et seq.). Mitchell v Trawler Racer, Inc. (1960) 362 US 539, 4 L Ed 2d 941, 80 S Ct 926 (superseded by statute as stated in Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).

Jones Act (46 USCS Appx § 688), which establishes uniform federal law that state as well as federal courts must apply to determination of employer liability to seamen and incorporates by reference all statutes of United States modifying or extending common-law right or remedy in cases of personal injury to railway employees, adopts entire judicially developed doctrine of liability under Federal Employers' Liability Act (FELA) (45 USCS § § 51 et seq.); in particular, Jones Act adopts requirement of FELA that state courts apply uniform federal law. American Dredging Co. v Miller (1994, US) 127 L Ed 2d 285, 114 S Ct 981, 94 CDOS 1288, 93 Daily Journal DAR 2371, 1994 AMC 913, 7 FLW Fed S 754.

Eleventh Amendment immunity protects New Jersey Transit Rail Operations from claim asserted under Federal Employers' Liability Act (FELA) (45 USCS § § 51 et seq.), where recent Supreme Court decision restricting abrogation of Eleventh Amendment immunity to Jones Act (46 USCS § 688) cause of action is equally applicable to FELA, because neither FELA nor state enabling statutes indicate specific intent to waive immunity of state-run railroad to suits in federal court, and this result, compelled by Eleventh Amendment, does not violate injured state railroad employee's equal protection rights. Rockwell v New Jersey Transit Rail Operations, Inc. (1988, DC NJ) 682 F Supp 280.

Intent of Congress in enacting 46 USCS Appx § 688 was to make applicable to seafaring occupation only such features of Federal Employers' Liability Act (45 USCS § § 51 et seq.) as were not already expressly covered by Wrongful Death on the High Seas Act (46 USCS Appx § § 701 et seq.). Re Rademaker's Estate (1938) 166 Misc 201, 2 NYS2d 309, 1938 AMC 396.

46 USCS Appx § 688 confers upon seaman or his legal representative same right of recovery for injury or death as is accorded to railway employees under Federal Employers' Liability Act (45 USCS § § 51 et seq.). Re Nelson (1938) 168 Misc 161, 5 NYS2d 398.

18. --Standards of liability

Standard of liability under 46 USCS Appx § 688 is that established by Congress under Federal Employers' Liability Act. Ferguson v Moore-McCormack Lines, Inc. (1957) 352 US 521, 1 L Ed 2d 511, 77 S Ct 457.

46 USCS Appx § 688 incorporates standards of Federal Employers' Liability Act (45 USCS § 51), which renders employer liable for injuries negligently inflicted on its employees by its "officers, agents, or employees"; these standards include principles that 45 USCS § 51 is avowed departure from rules of common law, and recognizing cost of human injury as inescapable expense of railroading, undertakes to adjust that expense equitably between worker and carrier; and that when employee's injury is caused in whole or in part by fault of others performing, under contract, operational activities of employer, such others are "agents" of employer within meaning of § 1 of Federal Employers' Liability Act (45 USCS § 51). Hopson v Texaco, Inc. (1966) 383 US 262, 15 L Ed 2d 740, 86 S Ct 765.

Standard of liability under Jones Act is same as under Federal Employers' Liability Act (45 USCS § § 51 et seq.). Springborn v American Commercial Barge Lines, Inc. (1985, CA5 La) 767 F2d 89 (disagreed with by multiple cases as stated in Nix v Kansas City S. R. Co. (CA5 Tex) 776 F2d 510).

To extent that Jones Act differs from FELA, difference is to be resolved in favor of seaman; thus, seaman is not barred from suit under Jones Act because he conceals material fact in applying for employment. Reed v Iowa Marine & Repair Corp. (1992, ED La) 143 FRD 648, later proceeding (ED La) 1992 US Dist LEXIS 12875, costs/fees proceeding (ED La) 1992 US Dist LEXIS 14461, adopted (ED La) 1993 US Dist LEXIS 1107.

Standard of liability and test of negligence and causation are same for both 46 USCS Appx § 688 and Federal Employers' Liability Act (45 USCS § § 51 et seq.). Catania v Halcyon S.S. Co. (1975, 2d Dist) 44 Cal App 3d 348, 118 Cal Rptr 513.

19. --Use of precedent

46 USCS Appx § 688 makes 45 USCS § § 51 et seq. rule of decision in actions by employees in actions for injuries from marine service to employers. Larson v Lewis-Simas-Jones Co. (1938) 29 Cal App 2d 83, 84 P2d 296, 1938 AMC 1505.

In adjudicating case brought under 46 USCS Appx § 688 court may consider decisions rendered under 45 USCS § § 51 et seq. Greenhaw v Pacific-Atlantic S.S. Co. (1950) 190 Or 182, 224 P2d 918.

46 USCS Appx § 688 incorporates 45 USCS § § 51 et seq. and its decisional law, and consequently makes all rights enjoyed by railroad employees under Federal Employers' Liability Act available to seamen. Rodriguez v B-R Dredging Co. (1977, Tex Civ App Corpus Christi) 552 SW2d 601, revd on other grounds (Tex) 564 SW2d 693.

20. --Suits by survivors

Surviving parents of seamen drowned when drilling vessel on which seamen were crew members capsized cannot recover nonpecuniary damages under Jones Act for loss of their sons' society where seamen were also survived by spouses and children, since, under 45 USCS § 51, parents can recover only when seaman is not survived by spouse or children. Sistrunk v Circle Bar Drilling Co. (1985, CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.

Under FELA [45 USCS § § 51 et seq.] schedule of beneficiary for wrongful death or personal injury action brought under Jones Act [46 USCS Appx § 688] is limited to decedent's surviving widow or husband, children, parents, and next of kin dependent upon decedent. Glod v American President Lines, Ltd. (1982, ND Cal) 547 F Supp 183.

21. Oceanographic Research Vessels Act (46 USCS Appx § § 441 et seq.)

Although under exclusionary language of 46 USCS Appx § 444 scientific personnel on oceanographic research vessel may not bring suit under Jones Act (46 USCS Appx § 688), they are not excluded from remedies available under general maritime law; however, individual who fell overboard while assisting fellow employee in repair of survey equipment on vessel chartered for seismic oil exploration was not seaman and not entitled to benefit of doctrine of seaworthiness, where individual was exclusively employee of company which chartered vessel, performed no duties in aid of vessel's navigation, and performed only scientific duties on behalf of employer. Craig v M/V Peacock (1985, CA9 Cal) 760 F2d 953.

Oceanographic Research Vessels Act (46 USCS Appx § § 441 et seq.) does not remove scientific personnel from seaman's status under 46 USCS Appx § 688. Sennett v Shell Oil Co. (1971, ED La) 325 F Supp 1.

Scientific personnel on board oceanographic research vessels, if otherwise entitled to assert seamen status under Jones Act [46 USCS Appx § 688] and general maritime law, are not prevented from doing so by 46 USCS Appx § § 441 et seq., but are entitled to same remedies available to all whose duties contribute to operation and welfare of vessel. Presley v Carribean Seal (1982, SD Tex) 537 F Supp 956, 10 Fed Rules Evid Serv 1064.

University research lab employee may not recover under Jones Act, 46 USCS Appx § 688, where employee was member of scientific research team aboard research vessel engaged in underwater acoustical research, and was injured when knocked down by wave, because Oceanographic Research Vessel Act, 46 USCS Appx § § 441-444, precludes scientific personnel from recovering under Jones Act for injuries suffered at sea, and specifically excludes scientific personnel on oceanographic research vessels from definition of "seaman" under Jones Act, 46 USCS Appx § 444. Mitola v Johns Hopkins Univ. Applied Physics Lab. (1993, DC Md) 839 F Supp 351.

22. Suits in Admiralty Act (46 USCS Appx § § 741 et seq.)

Even though effect of general service agreement under which steamship company operated vessel for United States Maritime Commission was to make seaman employee of United States, this did not necessarily remit him exclusively to Suits in Admiralty Act (46 USCS Appx § § 741 et seq.) for remedy to enforce substantive right given by 46 USCS Appx § 688. Hust v Moore-McCormack Lines, Inc. (1946) 328 US 707, 90 L Ed 1534, 66 S Ct 1218 (ovrld apparently on other grounds Cosmopolitan Shipping Co. v McAllister, 337 US 783, 93 L Ed 1692, 69 S Ct 1317, reh den 338 US 839, 94 L Ed 513, 70 S Ct 32).

Seaman injured while serving on vessel of Inland Waterways Corporation could sue such corporation only under Suits in Admiralty Act of 1920 (46 USCS Appx § § 741 et seq.); that Act is not in conflict with 46 USCS Appx § 688, but is exception to it. Sevin v Inland Waterways Corp. (1937, CA5 La) 88 F2d 988, 1937 AMC 814.

Though cause of action under 46 USCS Appx § 688 is based on negligence and, when brought against government has to be prosecuted in admiralty because of requirement of Suits in Admiralty Act (46 USCS Appx § § 741 et seq.), suit is not transformed into proceeding under former rules of maritime law under which right of recovery depends on proof of unseaworthiness. Desrochers v United States (1939, CA2 NY) 105 F2d 919, 1940 AMC 1392, cert den 308 US 519, 84 L Ed 441, 60 S Ct 180.

In action by marine engineer against his employer for personal injuries, complaint alleged that defendant had chartered or leased vessel on which injuries were received from United States; even if this is construed to mean bare-boat charter, Suits in Admiralty Act (46 USCS Appx § § 741 et seq.) would not apply, and federal District Court would have jurisdiction under 46 USCS Appx § 688. Foster v Moore-McCormack Lines, Inc. (1942, CA2 NY) 131 F2d 907, 1943 AMC 42, cert den 318 US 762, 87 L Ed 1134, 63 S Ct 560.

Election of non-jury trial of Jones Act claim in state court does not make it an admiralty case within exclusive federal jurisdiction. Linton v Great Lakes Dredge & Dock Co. (1992, CA5 La) 964 F2d 1480, petition for certiorari filed (Sep 21, 1992).

46 USCS Appx § 688 applies to suit by seaman under 46 USCS Appx § 742. Hansen v United States (1926, DC Ga) 12 F2d 321.

Jones Act, 46 USCS Appx § 688, applies only to vessels of private ownership or operation; when vessel is owned by United States or by corporation in which United States or its representatives owns entire capital stock, rights under 46 USCS Appx § 688 are enforceable by Suits in Admiralty Act, 46 USCS Appx § § 741 et seq. Schwecke v United States (1951, DC Cal) 96 F Supp 225.

23. Death on the High Seas Act (46 USCS Appx § § 761 et seq.)

Death on High Seas Act (46 USCS Appx § § 761 et seq.) creates wrongful death action for death outside 3-mile limit; whereas 46 USCS Appx § 688, incorporating Federal Employers' Liability Act (45 USCS § § 51-60), establishes such action based on negligence for wrongful death of seaman regardless of situs of wrong. Sea-Land Services, Inc. v Gaudet (1974) 414 US 573, 39 L Ed 2d 9, 94 S Ct 806, reh den 415 US 986, 39 L Ed 2d 883, 94 S Ct 1582 and (not followed Alfone v Sarno, 87 NJ 99, 432 A2d 857, 26 ALR4th 1237).

Death on High Seas Act (46 USCS Appx § § 761-768) and 46 USCS Appx § 688 create alternative or cumulative remedies for death of seaman on high seas. The Black Gull (1936, CA2 NY) 82 F2d 758, cert den 298 US 684, 80 L Ed 1404, 56 S Ct 954.

46 USCS Appx § 688 did not provide exclusive remedy for death of seaman on high seas and action for such damages can be maintained under Death on High Seas Act (46 USCS Appx § § 761-768) by seaman's administratrix, notwithstanding existence of 46 USCS Appx § 688 and fact that administratrix had previously brought similar action under 46 USCS Appx § 688 which was still pending. Doyle v Albatross Tanker Corp. (1966, CA2 NY) 367 F2d 465, 22 ALR3d 847.

Claim of representative of deceased seaman for negligence under 46 USCS Appx § 688 and unseaworthiness under Death on High Seas Act (46 USCS Appx § § 761 et seq.) may be tried in admiralty before same jury. Peace v Fidalgo Island Packing Co. (1969, CA9 Wash) 419 F2d 371, 13 FR Serv 2d 1053.

Seamen have alternative remedies against their employers under 46 USCS Appx § 688 for negligence or under Death on High Seas Act (46 USCS Appx § § 761 et seq.) for unseaworthiness. Re Dearborn Marine Service, Inc. (1974, CA5 Tex) 499 F2d 263, 30 ALR Fed 499, reh den (CA5 Tex) 512 F2d 1061 and cert dismd 423 US 886, 46 L Ed 2d 118, 96 S Ct 163.

Cause of action under Death on the High Seas Act (46 USCS Appx § § 761 et seq.) may be coupled with action under 46 USCS Appx § 688. Batkiewicz v Seas Shipping Co. (1943, DC NY) 53 F Supp 802.

Suit by administrator of estate of deceased seaman under 46 USCS Appx § 688 for death of his son was no bar to suit in admiralty under Death on High Seas Act (46 USCS Appx § § 761 et seq.) for benefit of both father and sister. The Four Sisters (1947, DC Mass) 75 F Supp 399.

Jurisdiction conferred by Death on High Seas Act (46 USCS Appx § § 761-768), even when joined with jurisdiction under 46 USCS Appx § 688, creates situation different from 46 USCS Appx § 688. Ridgedell v Olympic Towing Corp. (1962, ED La) 205 F Supp 952.

Personal representatives of seaman were entitled to recover for seaman's death at sea under either Death on High Seas Act (46 USCS Appx § § 761-768) or under 46 USCS Appx § 688, since relationship between two acts is not simply one of alternative remedies, but rather Death on High Seas Act provides remedy for additional class of beneficiaries. Petition of Risdal & Anderson Inc. (1968, DC Mass) 291 F Supp 353.

Valid claim by plaintiff under 46 USCS Appx § 688 does not affect legality of claims under Death on High Seas Act (46 USCS Appx § § 761 et seq.). Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (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).

Representatives of deceased crew members may seek recovery for members' pre-death pain and suffering, where no Jones Act (46 USCS Appx § 688) claim is available, because in this type of claim Death on High Seas Act (46 USCS Appx § § 761 et seq.) does not preempt general maritime survival action for pain and suffering and punitive damages. Favaloro v S/S Golden Gate (1987, ND Cal) 687 F Supp 475, 1988 AMC 818.

24. --Congressional intent

District Court properly granted summary judgment to defendant administrator of decedent captain's estate in Jones Act case on ground that captain was not employer; plaintiffs cited no case outside context of fishing lays that accords captain or master status as owner pro hac vice. McAleer v Smith (1995, CA1 RI) 57 F3d 109, 1995 AMC 2174.

Adoption of 46 USCS Appx § 688 so recently after enactment of Death on the High Seas Act (46 USCS Appx § § 761-768) did not indicate Congressional intention that provisions of 46 USCS Appx § 688 should not apply to libel in admiralty to recover damages resulting from death of seaman; Death on High Seas Act is general in its application and is not essentially seaman's act, whereas 46 USCS Appx § 688 relates to seaman and gives right of action wherever death occurs, in appropriate admiralty jurisdiction. Campbell v Luckenbach S.S. Co. (1925, DC Or) 5 F2d 674.

Passage of 46 USCS Appx § 688 without express repeal of Death on High Seas Act (46 USCS Appx § § 761-768) and without use of words of exclusivity, manifested congressional intent that dual remedies available to injured seaman should also be available to his estate if he dies; administratrix bringing action under both statutes would be entitled to jury trial on both theories. Gvirtsman v Western King Co. (1967, CD Cal) 263 F Supp 633, 10 FR Serv 2d 1060.

25. --Alternative or cumulative remedies

Recovery for seaman's death by drowning was cognizable under 46 USCS Appx § 688 and resort to Death on High Seas Act (46 USCS Appx § § 761 et seq.) was not necessary. Pollard v Seas Shipping Co. (1945, CA2 NY) 146 F2d 875, 1945 AMC 119.

Where explosion on offshore oil platform killed persons on boat tied to platform, Death on High Seas Act (46 USCS Appx § § 761-768) and 46 USCS Appx § 688 provided alternative remedies for recovery of damages as to seaman. Re Dearborn Marine Service, Inc. (1974, CA5 Tex) 499 F2d 263, 30 ALR Fed 499, reh den (CA5 Tex) 512 F2d 1061 and cert dismd 423 US 886, 46 L Ed 2d 118, 96 S Ct 163.

Where seaman lost his life when fishing trawler on which he was employed sank due to collision with other vessel, administrator of his estate could maintain action against owners and operators of trawler under Death on High Seas Act (46 USCS Appx § § 761-768) or under 46 USCS Appx § 688. McPherson v S.S. South African Pioneer (1971, ED Va) 321 F Supp 42.

Death of tool pusher, employed on drilling barge 100 miles at sea, gave rise to cause of action under Death on High Seas Act (46 USCS Appx § § 761 et seq.) as well as under 46 USCS Appx § 688, where, at time of death, tool pusher was being transported by helicopter to drilling barge. Higginbotham v Mobil Oil Corp. (1973, WD La) 357 F Supp 1164, supp op (WD La) 360 F Supp 1140, affd in part and revd in part on other grounds (CA5 La) 545 F2d 422 (disagreed with Smith v M/V Captain Fred (CA5 La) 546 F2d 119) as stated in Longmire v Sea Drilling Corp. (CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919 and (disagreed with on other grounds Steckler v United States (CA10 Colo) 549 F2d 1372, 38 ALR Fed 188 (disagreed with Smith v United States (CA3 Pa) 587 F2d 1013)) and revd on other grounds 436 US 618, 56 L Ed 2d 581, 98 S Ct 2010, on remand (CA5 La) 578 F2d 565 and reh den 439 US 884, 58 L Ed 2d 200, 99 S Ct 232 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) and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).

26. Other federal laws and treaties

Defense Bases Act (42 USCS § § 1651 et seq.), which incorporates remedies of Longshoremen's and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.), makes available to member of crew of any vessel, injured while employed at military, air, and naval bases outside United States, remedy afforded by 46 USC Appx § 688. Grimes v Raymond Concrete Pile Co. (1958) 356 US 252, 2 L Ed 2d 737, 78 S Ct 687 (not followed Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)).

Treaty relating to matters of internal order or discipline on board vessel of Honduran registry does not affect rights of seaman to recover damages for negligence against American citizen who owns vessel. Gerradin v United Fruit Co. (1932, CA2 NY) 60 F2d 927, cert den 287 US 642, 77 L Ed 556, 53 S Ct 92.

Jones Act (46 USCS Appx § 688) is distinguishable from Public Vessels Act in that purpose of former was remedial in nature for benefit and protection of seamen who are peculiarly wards of admiralty; although seaman injured by act of United States public vessel could recover under Public Vessels Act, it was not specifically enacted for seaman's sole benefit. United Continental Tuna Corp. v United States (1977, CA9 Cal) 550 F2d 569, 1977 AMC 660.

Once limitation of liability under 46 USCS Appx § 183 has been denied, plaintiffs should be permitted to elect whether to remain in limitation proceedings or to revive their original claims under Jones Act (46 USCS Appx § 688) in forum where they were originally brought prior to their restraint under order issued by court in which limitation proceedings were brought. Wheeler v Marine Navigation Sulphur Carriers, Inc. (1985, CA4 Va) 764 F2d 1008.

Although conduct wrongful only by virtue of sex discrimination provisions of Civil Rights Act is not cognizable under Jones Act, plaintiff's claim for emotional and physical injury resulting from harassment is cognizable under Jones Act. Wilson v Zapata Off-Shore Co. (1991, CA5 Tex) 939 F2d 260, 56 BNA FEP Cas 1051, 57 CCH EPD P 40942.

Although court will decline to reach issue of whether jurisdiction pursuant to Title VII of Civil Rights Act reaches owners of foreign flag cruise ships, EEOC will be allowed to investigate facts relevant to its jurisdiction through subpoena ducas tecum. EEOC v Kloster Cruise, Ltd. (1991, CA11 Fla) 939 F2d 920, 56 BNA FEP Cas 1061, 57 CCH EPD P 40934.

Finding of negligence under Jones Act does not conclusively mean finding of privity or knowledge for purpose of Limitation of Liability Act. Brister v A.W.I., Inc. (1991, CA5 La) 946 F2d 350, reh, en banc, den (CA5 La) 1991 US App LEXIS 28366.

Definition of "seaman" under Jones Act is limited to Jones Act and is not applicable to remedial goals of Fair Labor Standards Act. Martin v Bedell (1992, CA5 La) 955 F2d 1029, 30 BNA WH Cas 1321, 121 CCH LC P 35612.

Factors enunciated by Supreme Court for barring recovery against military under Federal Tort Claims Act apply equally to actions under admiralty provisions. Blakey v U.S.S. Iowa (1993, CA4 Va) 991 F2d 148.

Seaman injured while employed on vessel owned by United States and operated by steamship company under service agreement with War Shipping Administration could maintain his cause of action against United States, by virtue of Public Law 17, 78th Congress (50 USCS Appx. § § 1271, 1273, 1274, 1291-1295), as if he were proceeding under 46 USCS Appx § 688, and he also had right to maintain an action against steamship company for damages for maritime tort. Steele v American South African Line (1945, DC Cal) 62 F Supp 636.

Seaman who allegedly was intentionally injured by second seaman may sue second seaman under 28 USCS § 1331, because suit is not precluded by 46 USCS Appx § 688. Pearson v Rowan Cos. (1987, ED La) 674 F Supp 558.

3. Remedies Provided by State or Territorial Law

27. Pre-emption

46 USCS Appx § 688 covers entire field of liability for injuries to seamen, is paramount and exclusive and supersedes operation of all state statutes dealing with that subject. Lindgren v United States (1930) 281 US 38, 74 L Ed 686, 50 S Ct 207; Igneri v Cie. de Transports Oceaniques (1963, CA2 NY) 323 F2d 257, cert den 376 US 949, 11 L Ed 2d 969, 84 S Ct 965 and (disapproved on other grounds American Export Lines, Inc. v Alvez, 446 US 274, 64 L Ed 2d 284, 100 S Ct 1673).

Under Jones Act, which authorizes deceased seaman's personal representative to maintain action for seaman's death as result of personal injury in course of employment, wrongful death actions are limited to negligence; Jones Act pre-empts state law remedies for death or injury of seaman. Miles v Apex Marine Corp. (1990, US) 112 L Ed 2d 275, 111 S Ct 317.

Jones Act does not abrogate state's Eleventh Amendment immunity. Hilton v South Carolina Public Rys. Com. (1991, US) 116 L Ed 2d 560, 112 S Ct 560, 91 Daily Journal DAR 15439, 15 BNA OSHC 1465.

Where 46 USCS Appx § 688 applies, state statutes are excluded. Kibadeaux v Standard Dredging Co. (1936, CA5 Tex) 81 F2d 670, cert den 299 US 549, 81 L Ed 404, 57 S Ct 12.

Local law is now completely irrelevant to substantive rights concerning maritime injury at least short of death. Flowers v Savannah Machine & Foundry Co. (1962, CA5 Ga) 310 F2d 135.

Federal, not state, law governs claims under 46 USCS Appx § 688. Barboza v Texaco, Inc. (1970, CA1 Mass) 434 F2d 121.

Contract between oil company and service for selling wireline services furnished to movable drilling rig is not maritime contract and state law therefore applies. Domingue v Ocean Drilling & Exploration Co. (1991, CA5 La) 923 F2d 393.

Injured seaman or representative of diseased seaman must be content with rights given by 46 USCS Appx § 688 for recovery on account of employer's negligence and cannot take advantage of state statutes. Bath v Sargent Line Corp. (1958, DC NY) 166 F Supp 311.

In admiralty action with claims under 46 USCS Appx § 688, substantive law of state is not controlling. Valentine v Wiggins (1965, ED NC) 242 F Supp 870.

Law applicable to both negligence action brought under Jones Act (46 USCS Appx § 688) and unseaworthiness claim brought under general maritime law is general federal maritime law, and not substantive state law of forum. Parisi v Lady in Blue, Inc. (1977, DC Mass) 433 F Supp 681.

State-law loss-of-consortium claims by wife and child of seaman, who was injured while employed as crew member aboard vessel, are dismissed, because Jones Act (46 USCS Appx § 688) does not extend recovery to spouse for loss of consortium due to nonfatal injury, so allowing claims under state law would contradict rather than supplement maritime law, would promote nonuniformity, and would disavow Congress's purpose in enacting Jones Act that Jones Act seamen take remedies available under Federal Employers' Liability Act (45 USCS § § 51 et seq.). Clancy v Mobile Oil Corp. (1995, DC Mass) 906 F Supp 42, 1996 AMC 272, accepted (1995, DC Mass) 1995 US Dist LEXIS 16534.

With respect to those activities which are directly connected with commerce and navigation in their interstate and international aspects, law must be uniform throughout United States, and laws of various states cannot modify or vary it. Zubik v Bethlehem Steel Co. (1941) 144 Pa Super 13, 18 A2d 441.

28. --Supplemental remedies

Survivors of seaman may recover for his wrongful death in Ohio waters only under 46 USCS Appx § 688 and not under Ohio statute dealing with unseaworthiness, as 46 USCS Appx § 688 is exclusive; however, action under state law for pain and suffering incurred prior to death is not precluded by 46 USCS Appx § 688. Gillespie v United States Steel Corp. (1964) 379 US 148, 13 L Ed 2d 199, 85 S Ct 308 (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.

46 USCS Appx § 688 applies only to seamen, but state statute which does not enlarge admiralty jurisdiction but merely gives cause of action in addition to that given by federal statute or general maritime law is enforceable in admiralty court. Young v Clyde S.S. Co. (1923, DC Fla) 294 F 549 (disapproved on other grounds United States Fidelity & Guaranty Co. v Reed Constr. Co. (Fla App D3) 149 So 2d 578).

46 USCS Appx § 688 is exclusive of all state legislation, but only in field which it covers, which is liability of employers to their employees, and seaman's or stevedore's widow may still invoke state statutes giving her right of action for death of her husband if caused by third person within territorial limits of state. Kwasizur v Dawnic S.S. Co. (1938, DC Pa) 25 F Supp 327, 1938 AMC 1231.

Although 46 USCS Appx § 688 may supersede state-created remedies against employer, it does not preclude actions against other tortfeasors given by state law. Petition of Oskar Tiedemann & Co. (1964, DC Del) 236 F Supp 895, revd on other grounds (CA3 Del) 367 F2d 498, supp op (CA3 Del) 367 F2d 505, cert den 386 US 932, 17 L Ed 2d 805, 87 S Ct 953 and cert den 386 US 932, 17 L Ed 2d 805, 87 S Ct 957, reh den 386 US 1000, 18 L Ed 2d 354, 87 S Ct 1303.

46 USCS Appx § 688, unlike Longshoremen's and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.), has no provision rendering inoperative state laws which create parallel remedies. Plantation v Roberts (1976, Fla) 342 So 2d 69.

29. Compensation acts

One who has elected to sue under state employers' liability law cannot urge abrogation of fellow servant rule in 46 USCS Appx § 688. Van Norden v Chas. R. McCormick Lumber Co. (1927, CA9 Or) 17 F2d 568, 1927 AMC 514, cert den 274 US 758, 71 L Ed 1337, 47 S Ct 768.

State did not waive its Eleventh Amendment immunity from suit in federal court by incorporating Jones Act into its statutes, where statutes contained venue provision conflicting with Jones Act venue provision; statutory reference to Jones Act does not create "such overwhelming implication" from text of state statute that state consented to be sued in federal court. Micomonaco v Washington (1995, CA9 Wash) 45 F3d 316, 95 CDOS 445, 95 Daily Journal DAR 799.

Prerequisites for finding seaman exempt from coverage under federal maritime laws and 46 USCS Appx § 688 owing to coverage under Puerto Rico Workers' Compensation Act are (1) that employer is duly authorized by Commonwealth to do business in Puerto Rico; (2) employer insured employees under Act; (3) accident occurred within territorial waters of Puerto Rico; and (4) seaman was resident of Puerto Rico at time of accident. Nahan v Pan Am. Grain Mfg. Co. (1997, DC Puerto Rico) 967 F Supp 648.

Remedies provided by state workmen's compensation law are not available to seaman whose injuries are within 46 USCS Appx § 688 or maritime law as to maintenance and cure; to exclude state compensation law in favor of maritime law, there must appear to be impairment of uniformity of operation of maritime laws, and with reference to employees other than seamen, service performed must have relation to commerce and navigation. Occidental Indem. Co. v Industrial Acci. Com. (1944) 24 Cal 2d 310, 149 P2d 841.

New York has made compensation exclusive remedy available to state employees injured in course of employment and has withheld consent to be sued in such cases; Congress, in enacting 46 USCS Appx § 688, had neither intent nor power to require state courts to accept such cases in defiance of statutes limiting their jurisdiction. Maloney v State (1956, 4th Dept) 2 App Div 2d 195, 154 NYS2d 132, affd 3 NY2d 356, 165 NYS2d 465, 144 NE2d 364.

30. --Effect of prior state action on subsequent federal action

Determination of nonseaman status made by Industrial Accident Board of Texas did not foreclose subsequent suit as seaman under 46 USCS Appx § 688 on grounds of either res judicata or estoppel. Mike Hooks, Inc. v Pena (1963, CA5) 313 F2d 696, 1963 AMC 355.

Unsuccessful action for workmen's compensation is not inconsistent with and does not prevent subsequent action for damages under 46 USCS Appx § 688. Boatel, Inc. v Delamore (1967, CA5 La) 379 F2d 850.

Workers' Compensation award that gives claimant no more than payments that are analogous to maintenance and cure will not be deemed to settle all of seaman's claims and will not bar Jones Act suit. Mooney v City of New York (2000, CA2 NY) 219 F3d 123.

Action under 46 USCS Appx § 688 would not be stayed on ground that compensation claim on same cause was pending before state Department of Labor. Marceau v Great Lakes Transit Co. (1944, DC NY) 53 F Supp 594, 1944 AMC 508, affd (CA2 NY) 146 F2d 416, 1945 AMC 223, cert den 324 US 872, 89 L Ed 1426, 65 S Ct 1018.

31. ----Effect of recovery in state action

Doctrine of local concern will not be applied to result in exclusion of maritime law by state workmen's compensation act where plaintiff is seaman injured on navigable waters; acceptance by deckhand of payments under state compensation act is not sufficient to justify implying release from such payments so as to preclude recovery under 46 USCS Appx § 688. Gahagan Const. Corp. v Armao (1948, CA1 Mass) 165 F2d 301, cert den 333 US 876, 92 L Ed 1152, 68 S Ct 905.

Seaman who signs state workmen's compensation agreement and receives payment thereunder, and executes final receipt, is not barred from recovery under 46 USCS Appx § 688 or doctrine of unseaworthiness but in event he recovers verdict, court will be free to apply equitable principles and set off compensation payments from amount of award. Schellenger v Zubik (1959, DC Pa) 170 F Supp 92.

Since issues essential to jurisdiction under 46 USCS Appx § 688 were not determined in state compensation proceedings which resulted in award to widow for death of her husband, widow was not collaterally estopped to recover under 46 USCS Appx § 688 and fact that widow received part of award did not preclude assertions of her rights under 46 USCS Appx § 688. De Court v Beckman Instruments, Inc. (1973, 4th Dist) 32 Cal App 3d 628, 108 Cal Rptr 109.

32. --Effect of prior federal action on subsequent state action

Claim of workers' compensation insurer for reimbursement of benefits paid to injured worker who was determined to be seamen and entitled to benefits under Jones Act, is granted summarily, because injured maritime worker is not allowed to recover twice for same maritime injury, once under federal maritime law and once under state workers' compensation law. Ditmore v Fairfield Indus. (1994, SD Tex) 855 F Supp 187.

Where claimant was injured while employed as cook on boat plying on Great Lakes and had recovered under 46 USCS Appx § 688, he was not entitled to compensation from state workmen's compensation board. Marceau v Great Lakes Transit Co. (1946) 271 App Div 853, 66 NYS2d 24.

33. --Puerto Rico

1980 amendments to Organic Act of Puerto Rico (48 USCS § 749) permitted Puerto Rico to supplant Jones Act (46 USCS Appendix § 688) with Puerto Rico Workmen's Accident Compensation Act (11 LPRA § § 1-42) for covered accidents to resident seamen that occurred within 3 marine leagues of Puerto Rican coastline. Perez De La Cruz v Crowley Towing & Transp. Co. (1986, CA1 Puerto Rico) 807 F2d 1084.

Seaman covered by Puerto Rico workmen's compensation act could not maintain action under 46 USCS Appx § 688 or general maritime law against his employer for injuries. Flores v Prann (1959, DC Puerto Rico) 175 F Supp 140.

34. ----Effect of situs of injury; waters of Puerto Rico

Seaman and crews of vessels who were injured while at work on their respective vessels when afloat on navigable waters within territorial limits of Puerto Rico could not maintain actions under 46 USCS Appx § 688 but were confined to remedies provided by Puerto Rico's workmen's compensation act. Fonseca v Prann (1960, CA1 Puerto Rico) 282 F2d 153, cert den 365 US 860, 5 L Ed 2d 822, 81 S Ct 826.

Puerto Rico Workmen's Accident Compensation Act, and not federal maritime law, is exclusive remedy in suits against insured employer for injuries sustained in course of employment in San Juan Harbor, even though employer and owner of tug was wholly owned subsidiary of mainland corporation. Salas Mojica v Puerto Rico Lighterage Co. (1974, CA1 Puerto Rico) 492 F2d 904.

Court could not pierce corporate veil of insured employer under Puerto Rico Workmen's Accident Compensation Law and hold parent company, uninsured under Puerto Rico statute, liable for negligence under 46 USCS Appx § 688 and unseaworthiness of tug owned and operated by its wholly owned subsidiary, which allegedly caused injury to Puerto Rico seaman within territorial waters of Puerto Rico; Puerto Rican seaman injured in territorial waters of Puerto Rico while working for employer insured pursuant to Puerto Rico Workmen's Accident Compensation Act could not sue his employer under 46 USCS Appx § 688 or under law of unseaworthiness. Fanfan v Berwind Corp. (1973, ED Pa) 362 F Supp 793.

Seaman's Jones Act (46 USCS Appx § 688) claim must be dismissed, where wind blew wheel house door shut on his hand while tug was docked in Puerto Rican territorial waters, because when Puerto Rican seaman is injured within territorial waters of Puerto Rico while working for company insured under Puerto Rico State Insurance Compensation Fund, his exclusive remedy lies pursuant to Puerto Rico Workmen's Compensation Act. Reeser v Crowley Towing & Transp. Co. (1996, DC Puerto Rico) 937 F Supp 144.

35. ------Outside waters of Puerto Rico

Puerto Rican seaman injured on board his vessel docked at Morgan City, Louisiana, has cause of action under 46 USCS Appx § 688 and general maritime law, notwithstanding coverage under exclusive remedy provisions of Puerto Rican Workmen's Accident Compensation. Manuel Caceres v San Juan Barge Co. (1975, CA1 Puerto Rico) 520 F2d 305.

36. --Particular circumstances

Employee on vessel, assisting in unloading vessel afloat on navigable waters, was not entitled to recover for injuries under state workmen's compensation act. Employers' Liability Assur. Corp. v Cook (1930) 281 US 233, 74 L Ed 823, 50 S Ct 308, 1930 AMC 760.

Master of ship, who was instructed to supervise crew during vacation due to absence of ship doctor, was seaman on ship engaged in navigation where ship was moored to float in navigable waters, hence death of master from drowning as result of returning late at night to ship was covered by 46 USCS Appx § 688 rather than by compensation under local workmen's compensation act. Alaska Dept. of Health v Alaska Industrial Board (1951, DC Alaska) 101 F Supp 171.

Jones Act seaman who suffered stroke while piloting vessel on navigable waters of United States could not constitutionally be provided remedy under state workmen's compensation statute. Bearden v Leon C. Breaux Towing Co. (1978, La App 3d Cir) 365 So 2d 1192.

Mississippi workmen's compensation law was inapplicable to deceased who at time of his death was employed as master and pilot on tugboat in interstate commerce on navigable waters of United States. Valley Towing Co. v Allen (1959) 236 Miss 51, 109 So 2d 538.

Member of a pile driver's crew connected with barges without motive power located on navigable river was seaman, and for injuries received must seek compensation under 46 USCS Appx § 688 and not under state workmen's compensation act. Pfister v Bagdett Const. Co. (1933, Mo App) 65 SW2d 137.

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