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Legal Beat: Captains Not Able to Recover Under Jones Act

February 21, 2003

Maritime law traditionally recognized only two claims by a seaman injured in the course of his employment. One claim was for maintenance and cure along with wages until the end of the voyage, and the other claim was damages for injuries sustained due to the unseaworthiness of the ship. Eventually, the Jones Act was passed creating an additional right of action for seaman under the theory of negligence.

In contrast to the rights afforded to seamen, vessel owners have also been provided with certain defenses and immunities. One such defense is the primary duty doctrine. Under the primary duty doctrine, a Jones Act seaman may not recover from a vessel owner for injuries caused by the seaman's own failure to perform a duty imposed on him by his employment. The primary duty doctrine applies only to supervisory employees such as a captain or a ship officer charged with the duty of maintaining a certain area of the ship. At first look, this doctrine appears to be the equivalent of the land tort concept of contributory negligence. However, the theory behind the primary duty doctrine is that the vessel owner has an independent right to recover against the employee for the non-performance of a duty resulting in damage to the employer. This right in effect offsets the employee's right to recover against the employer for failure to provide a safe place to work. Furthermore, there is a general principle in admiralty law that the land tort concepts of contributory negligence and assumption of risk are not absolute bars to a seaman's recovery against his employer for personal injury. Therefore, the reach of the primary duty doctrine has been limited by the courts over the years.

Three limiting principles have been developed in the application of the primary duty rule. First, the primary duty rule will not bar a claim arising from the breach of a duty that the seaman did not consciously assume as a term of his employment. Second, the rule does not apply where a seaman is injured by a dangerous condition that he did not create and could not have controlled or eliminated. Finally, the rule applies only to a knowing violation of the consciously assumed duty, rather than a momentary lapse of judgment by an otherwise careful seaman.

One of the most recent cases involving the application of this doctrine is the United States Court of Appeals opinion in Northern Queen Inc. v. Kinnear. On March 9, 1999, the fishing vessel LIN J was completing the snow crab season in the northwest section of the Bering Sea. The captain of the F/V LIN J sent e-mails from the vessel to family members indicating that the weather was turning bad and that ice was becoming a concern. Accordingly, the crew spent the next couple of days gathering crab pots and preparing to return to port. About one week later, the crew had gathered 62 crab pots and brought aboard approximately 55,000 pounds of crab.

The captain's e-mails to family members indicated that icing was becoming a problem for the vessel. Icing refers to the buildup of ice on the ship's hull caused by the spray of water from wind and waves in the freezing temperatures. The ice buildup can render a vessel unstable and lead to capsizing. Adding to this concern was the accumulation of water in the enclosed space under the deck at the stern of the ship known as the lazaret. A float alarm is installed in the lazaret that is triggered when the water rises above a certain level. According to the captain's e-mails, this alarm was triggered suggesting that approximately 400 gallons of water filled the lazaret. Under normal weather conditions, access to the lazaret would be blocked by the crab pots because the only entrance to the lazaret is through a watertight deck hatch. However, during extreme weather conditions such as those faced by the F/V LIN J, it is standard industry practice to carry no more than 25 crab pots on board. This practice serves to prevent excessive ice from accumulating on the vessel and allows for easier access to the lazaret if necessary. As stated above, the F/V LIN J was carrying 62 crab pots.

Tragically, on March 17, 1999, the F/V LIN J capsized and all crewmembers perished. The testimony at trial indicated that in icing conditions it is standard for the captain to reduce the vessel's speed to 1 to 2 knots to reduce the spray of water and lessen the buildup of ice on the ship's structure. Nevertheless, based on the last reported location of the vessel and its location when it capsized, it was determined that the estimated speed of the F/V LIN J was 5 to 6 knots.

The appellate court held that the owners of the F/V LIN J were not liable to the estate of the deceased captain. The basis for their ruling was the primary duty doctrine. The court reasoned that the captain's death was the result of his own failure to carry out his consciously assumed duties as captain. The parties stipulated prior to trial that the vessel capsized and sank due to instability caused by excessive ice buildup on the vessel and the water in the lazaret. The court attributed these conditions to the captain's decision to store 62 crab pots in the lazaret and to travel at 5 to 6 knots in the icing conditions.

The court's analysis included the three limitations on the primary duty doctrine mentioned above. The court held that the captain consciously assumed the duty to operate the vessel under these weather conditions.

Furthermore, although the captain did not create the weather conditions he could have controlled or eliminated some of the hazards including the buildup of ice due to excessive speed and the accumulation of water in the lazaret due to overloading of crab pots. Finally, the court reasoned that this was a knowing violation of a duty consciously assumed as a term of the captain's employment. This final element is often the most difficult for the vessel owner to prove because it involves an intent element. To knowingly violate a duty does not mean a momentary lapse of judgment. Rather, it implies an intentional conscious disregard of the captain's duties. In this case, the court reasoned that the e-mails sent by the captain to his family members supplied the proof that he was aware of the icing conditions and the water accumulation in the lazaret but knowingly proceeded with 62 crab pots at 5 to 6 knots anyway.

The significance of this doctrine for vessel owners is that it releases them from liability in cases where a seaman in a supervisory capacity has injured himself due to his own failure to perform a duty. However, this doctrine does not abrogate the vessel owner's responsibility to tender a seaworthy vessel.

Some cases have refused to apply the primary duty doctrine where the seaman failed to perform his duty but the vessel itself was unseaworthy in the first place. For example, in one case a captain was injured when he fell from a ladder that was not properly secured to the wall. The court in that case did not apply the primary duty doctrine because there was no evidence presented that the captain actually knew of the unseaworthy condition before the accident.

Accordingly, for vessel owners that have met their burden of proving a vessel was seaworthy, the primary duty doctrine provides a useful defense to certain Jones Act cases.

About the Authors

James Nader is a partner and C. Devin Fadaol is an associate with the law firm of Lobman, Carnahan, Batt, Angelle & Nader in New Orleans, La. Mr. Nader¹s trial practice over the last eighteen years has included Admiralty and Maritime Law, an area in which he is an adjunct professor at Tulane University. Mr. Fadaol's primary practice areas include insurance defense and general civil litigation. For more information on the firm, please see it's Website at, or contact them at 400 Poydras St., Suite 2300, New Orleans, LA 70130, phone (504) 586-9292.

**This article is for general information and educational purposes only, and should not be construed as legal advice. The authors are available to discuss any specific questions or concerns regarding any issues related to this article with you.

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