iThe US Court of Appeals for the Fifth Circuit recently issued a decision affirming the assessment of contributory negligence against a seaman injured while following an order of the vessel captain.[1]
In Andrew Lee Knight v. Kirby Offshore Marine Pacific, LLC, the plaintiff seaman incurred an ankle injury while working aboard a tugboat owned and operated by his employer. On the day of the plaintiff’s incident, the vessel captain ordered the plaintiff and another crewmember to change out a stern line because it had become worn or chafed. At the time the order was given, the weather involved winds of at least 20 miles per hour, with four-foot seas. After plaintiff and his crewmate removed the chafed line, they placed it on the deck next to where they were working. While installing the new stern line, plaintiff stepped on the chafed line and injured his ankle. Plaintiff claimed that the rocking of the vessel due to the high winds and four-foot seas caused him to lose his balance.
Plaintiff subsequently filed suit against his employer for Jones Act negligence. After a two-day bench trial, the district court assigned equal fault to both parties, concluding that the employer was negligent for issuing an order to change the stern line during rough weather conditions and that plaintiff was contributorily negligent for failing to “watch his footing while replacing the chafed stern line” and for failing to “move the chafed stern line to a location on the boat where he would not have stepped on it.” Plaintiff subsequently appealed the district court judgment, arguing that the district court erred by assessing him with fault when he incurred the injury while complying with an order from his superior.
In support of his appeal, plaintiff relied on the case Williams v. Brasea, Inc., which, in dictum, states that “a seaman may not be contributorily negligent for carrying out orders that result in his own injury, even if he recognizes possible danger.”[2] The Fifth Circuit explained that the dictum in Williams is not binding in this case but acknowledged that other jurisdictions have adopted the Williams principle when determining whether a seaman may be assessed with contributory or comparative fault. For example, the Ninth Circuit applies a categorical interpretation of Williams, such that a defense of contributory negligence is barred for all orders from a captain.[3] Other courts, however, apply the dictum in Williams only to injuries incurred while following a supervisor’s specific order, thus allowing contributory negligence when the injury was sustained while following a general order.[4]
In its analysis, the Fifth Circuit pointed to other Jones Act negligence cases from the Fifth Circuit that reflect a distinction between general and specific orders. Specifically, the Fifth Circuit surveyed cases that applied contributory negligence for injuries incurred by a seaman while performing tasks ordered by a superior, without specific instructions or requirements.[5] In these cases, the court explained that a rule barring contributory negligence for all orders, including general orders to perform regular, routine tasks, would make “automatons of seaman” and invalidate the principle that a seaman owes a duty to care for his own safety.[6]
After reviewing its precedent and application of the dictum in Williams, the Fifth Circuit held that a seaman cannot be found contributorily negligent if injured only while carrying out a specific order from his superior. The Fifth Circuit defines a specific order as one “that must be accomplished using a specific manner and method and leaving the seaman with no reasonable alternative to complete the assigned task.”
Despite plaintiff’s being ordered to perform the task in arguably rough weather conditions, the Fifth Circuit found that the order given to plaintiff and his crewmate to replace the stern line constituted a general order, as the order involved a routine, ordinary task without any additional instructions or specifications. Therefore, the dictum in Williams was not triggered. Accordingly, the Fifth Circuit affirmed the district court’s reduction of plaintiff’s damages award in proportion to his own fault.
The Fifth Circuit’s ruling in Knight v. Kirby squarely challenges a common presupposition of Jones Act personal injury claims, namely that a seaman cannot be found contributorily or comparatively at fault when injured while following the orders of a superior. By distinguishing the effect of general and specific orders on contributory/comparative fault, the Fifth Circuit reinforces another traditional maritime principle: a seaman must perform his tasks with ordinary prudence under the circumstances and must take care to look after his own safety.
[1] Andrew Lee Knight v. Kirby Offshore Marine Pacific, LLC, Case No. 19-30756 (5th Cir. Dec. 17, 2020).
[2] 497 F.2d 67, 73 (5th Cir. 1974).
[3] See Simeonoff v. Hiner, 249 F.3d 883, 890 (9th Cir. 2001).
[4] See, e.g., Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 167 (Tex. 2012) (holding that Williams applies solely “when the seaman is ordered to do a specific task in a specific manner or is ordered to do a task that can be accomplished in only one way”); Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1279 (3d Cir. 1995) (“when the employee is given a specific order — that is, where he or she is told to perform a specific task in a particular way — he is not contributorily negligent”) (internal quotation marks and citation omitted); Alholm v. Am. Steamship Co., 144 F.3d 1172, 1179 (8th Cir. 1998) (“A seaman cannot be found comparatively negligent [] when following an order to complete a task in a specific manner.”).
[5] See, e.g., Boudreaux v. United States, 280 F.3d 461 (5th Cir. 2002) (attributing 50% fault to a seaman injured while performing one of two jobs ordered by a supervisor, who did not specifically instruct plaintiff on the order to perform the tasks); Pallis v. United States, 369 F. App’x 539 (5th Cir. 2010) (affirming assignment of 75% fault to seaman ordered to move trash but electing to carry the heavy objects without requesting help); compare Ledet v. Smith Marine Towing Corp., 455 F. App’x 417 (5th Cir. 2011) (contributory negligence reduction foreclosed where seaman was injured while performing highly specific task at a designated time).
[6] Pallis, 369 F. App’x at 542.
