1. Assumption of risk is not a defense in a suit brought by a
seaman under the Jones Act to recover for injuries resulting from
his use, while on duty, of a defective appliance of the ship, when
he chose to use the unsafe appliance, knowing it unsafe, instead of
a safe method of doing his work, which was known to him. P.
305 U. S.
428.
2. In such cases, the admiralty rule of comparative negligence
applies, in mitigation of damages. P. 431.
96 F.2d 98 affirmed.
Certiorari,
post, p. 586, to review the affirmance of a
judgment recovered by the present respondent, a seaman, in an
action for personal injuries brought under the Jones Act.
MR. JUSTICE STONE delivered the opinion of the Court.
The question is whether assumption of risk is a defense in a
suit brought by a seaman under the Jones Act to recover for
injuries resulting from his use, while on duty,
Page 305 U. S. 425
of a defective appliance of the ship, when he chose to use the
unsafe appliance instead of a safe method of doing his work, which
was known to him.
Respondent, a seaman, brought the present suit in the District
Court for southern New York to recover, under the Jones Act, 41
Stat. 1007, 46 U.S.C. § 688, for an injury received from a
fall in the engine room of petitioner's vessel. The fall was caused
by a defective step on which respondent stood while on duty, when
seeking to learn, by touching with his finger, whether an engine
bearing was overheated.
In submitting the case to the jury, the trial court applied the
admiralty rule of comparative negligence, instructing the jury that
negligence of respondent contributing to the accident was not a bar
to recovery, but was to be considered in mitigation of damages. The
court refused petitioner's request for an instruction that, if
respondent could have performed his duty without use of the
defective step, he assumed the risk of injury from it. Instead, the
court charged that there was no assumption of risk by the seaman
where the shipowner failed in its duty to furnish a safe
appliance.
Judgment of the district court, upon a verdict in respondent's
favor, was affirmed by the Court of Appeals for the Second Circuit,
96 F.2d 98, on authority of
The Arizona v. Anelich,
298 U. S. 110, and
Beadle v. Spencer, 298 U. S. 124. The
court's decision was predicated upon its conclusion that respondent
had free choice of a way to reach and touch the bearing, without
standing on the defective step, and it held that in the
circumstances, and, since the seaman had not used the defective
appliance contrary to orders, the trial judge had correctly
instructed the jury that assumption of risk was not a bar to
recovery. We granted certiorari, October 10, 1938, upon a petition
asking us to review this ruling in the light of our decisions in
The Arizona and the
Beadle cases,
supra,
Page 305 U. S. 426
the question being one of public importance in the application
of the maritime law as supplemented by the Jones Act.
A preliminary point, much discussed in brief and argument here,
is whether the question ruled upon below is presented by the
record. Respondent insists that there was no evidence from which
the jury could conclude that there was a safe method known to him
by which he could have reached the bearing without using the
defective step and that he chose the unsafe instead of the safe
method.
Respondent was employed as an oiler in petitioner's engine room.
It was his duty while the vessel was under way to touch with his
finger at intervals of twenty minutes, a bearing of the propeller
shaft, in order to ascertain whether it was overheating and in need
of additional lubrication. Directly in front of the bearing, as he
approached it, was an iron step, located about one foot above the
engine room floor and bolted to the bedplate which supported the
bearing. Respondent testified that the step was braced on its
underside by a bracket or strut, and that, about two or three weeks
before the accident, he had observed that the bracket was loose and
out of place, and had reported the fact to a superior officer.
Respondent also gave the only account of what occurred at the
time of the accident. He testified that, in order to reach the
bearing, it was necessary for him, and was his uniform practice, to
stand with his right foot upon the step with his left advanced and
placed upon the bedplate, and with his left hand holding, for
support, the upper edge of an adjacent vertical slush pan; that,
standing in this position, he placed his right hand in a hole
extending downward through the bearing cap a distance of eight or
ten inches, where he touched the shaft and the adjoining bearing to
discover whether they were overheated and to inspect the oil which
stuck to his fingers
Page 305 U. S. 427
and which, if discolored, would indicate that the journal was
beginning to gripe because of excessive friction; that, as he
stepped down, his left foot struck the loose bracket, which had
projected beyond the edge of the step, causing him to fall and
suffer the injuries complained of. There was testimony by
petitioner's witnesses, all denied by respondent, from which the
jury could have found that it was possible for respondent to have
reached the bearing while standing on the floor, without the use of
the defective step, by seizing with his right hand a grab iron
located on a nearby column and reaching with his left hand to touch
the left end of the bearing, which extended through the bedplate;
that this was the usual and only appropriate way to examine the
bearing, and that respondent had been seen to reach it in that
manner. There was also testimony that other oilers had touched the
bearing without using the step while standing on the floor, with
right hand grasping the upper edge of the vertical crank-pit guard,
which was adjacent on the right and nearer to the bearing than the
grab iron. There was evidence of the relative localities of the
several parts of the structure mentioned and of the distances
between them, indicating that respondent could have reached the
bearing, either at its left end or through the hole in the bearing
cap, while standing on the engine room floor and without using the
step.
We must accept the verdict as establishing the negligent failure
of petitioner to furnish a safe appliance, the iron step, and that
the plaintiff knew that it was defective at the time of the
accident, for the only evidence of any breach of duty by petitioner
was respondent's testimony that he knew of the defect and had
reported it to the first assistant engineer two or three weeks
before the accident. Upon all the evidence, it was for the jury to
say whether respondent was aware that, in reaching the bearing with
one hand, either at its end or through the hole in the bearing
Page 305 U. S. 428
cap, he could avoid the use of the defective step by standing on
the engine room floor and steadying himself by seizing with his
right hand the grab iron or the crank-pit guard on his right, or by
placing his left hand on the edge of the slush pan.
No specific instruction was asked or given as to what the
verdict should be if the jury concluded that respondent had
knowingly made such an election. Instead, the court charged
generally "that the ship owner is under a duty to furnish the
seaman with a safe place in which to work" and "[t]here is no
contributory negligence or assumption of risk on the part of a
plaintiff insofar as the defendant fails in these duties."
Consequently, there is no basis for disturbing the judgment unless
this charge is erroneous as applied to the evidence taken most
favorably to petitioner.
The question whether assumption of risk is a bar to a suit by a
seaman to recover under the Jones Act for injuries caused by a
defective appliance, when he has a free choice to avoid the use of
it, is a novel one in this Court. No such choice was involved in
The Arizona or
Beadle cases. There assumption of
risk by the seaman, which would have barred recovery at common law,
was concededly not a defense under the admiralty rule. The decision
was that the Jones Act, in extending to seamen all the rights to
recover for injuries resulting from defective appliances given to
railway employees by the Federal Employers' Liability Act, 35 Stat.
65, 45 U.S.C. § 51
et seq., had left undisturbed the
admiralty rule with respect to assumption of risk. In holding that
the rule had not been changed, we did not consider the question now
presented -- whether, within that rule, assumption of risk is a
defense where the seaman could have avoided the use of the unsafe
appliance by the free choice of a safe one.
Before the Jones Act, a seaman was entitled to recover from a
vessel or its owner indemnity for injuries due to an
Page 305 U. S. 429
unseaworthy vessel, or for "failure to supply and keep in order
the proper appliances appurtenant to the ship."
The
Osceola, 189 U. S. 158,
189 U. S. 175;
The Arizona v. Anelich, supra, 298 U. S. 120
et seq. Contributory negligence, then as now, was not a
defense in suits brought by seamen to recover for injuries
attributable to defective equipment, but was ground only for
mitigation of damages.
See The Max Morris, 137 U. S.
1;
The Arizona v. Anelich, supra, 298 U. S. 122,
and cases cited. And no American case appears to have recognized
assumption of risk as a defense to such a suit. In numerous cases,
this defense was either denied or ignored in circumstances plainly
calling for its application had it been available.
Halverson v.
Nisen, Fed.Cas. No.5,970, 3 Sawy. 562;
The Edith
Godden, 23 F. 43;
The Noddleburn, 28 F. 855;
Olson v. Flavel, 34 F. 477;
The A. Heaton, 43 F.
592;
The Julia Fowler, 49 F. 277;
Lafourche Packet Co.
v. Henderson, 94 F. 871;
The Fullerton, 167 F. 1;
Globe S.S. Co. v. Moss, 245 F. 54;
The Colusa,
248 F. 21;
Cricket S.S. Co. v. Parry, 263 F. 523;
Storgard v. France and Canada S.S. Corp., 263 F. 545.
In some of these cases, the seaman had voluntarily shipped on a
vessel which he knew to be unseaworthy,
Cricket S.S. Co. v.
Parry, supra; see Scheffler v. Moran Towing & Transportation
Co., 68 F.2d 11, 12. In others, it was apparent that the
seaman had chosen to expose himself to the dangers of unsafe
appliances when there was a safe alternative.
The Julia Fowler,
supra; Olson v. Flavel, supra.
In some cases arising after the Jones Act where the defense was
allowed, the employee was thought to have had the status of a
stevedore or shore worker, and not that of a seaman.
The
Maharajah, 40 F. 784;
Cunard S.S. Co. v. Smith, 255
F. 846;
Hardie v. New York Harbor Dry Dock Corp., 9 F.2d
545;
Skolar v. Lehigh Valley R. Co., 60 F.2d
Page 305 U. S. 430
893;
Scheffler v. Moran Towing & Transportation Co.,
supra, 12;
Yaconi v. Brady & Gioe, Inc., 246 N.Y.
300, 306, 158 N.E. 876. In
Johnson v. United States, 74
F.2d 703, the seaman had made his choice in disobedience of orders,
and in another where the defense was allowed the seaman, while not
on duty, though in the course of his employment, had chosen to go
into an unsafe part of the vessel, knowing that there was an
alternative.
Holm v. Cities Service Transp. Co., 60 F.2d
721. [
Footnote 1]
Here, respondent was a seaman; he was on duty when injured, and
there was no evidence that he acted in disobedience of orders. In
the absence of any controlling or persuasive authority, we look to
the reason of the admiralty rule of assumption of risk in order to
ascertain its appropriate limits. Many considerations which apply
to the liability of a vessel or its owner to a seaman for the
failure to provide safe appliances and a safe place to work are
absent or are of little weight in the circumstances which attend
shore employment, in relation to which the common law rules of
assumption of risk and contributory negligence have been
developed.
The seaman, while on his vessel, is subject to the rigorous
discipline of the sea, and has little opportunity to appeal to the
protection from abuse of power which the law makes readily
available to the landsman. His complaints to superior officers of
unsafe working conditions not infrequently provoke harsh treatment.
He cannot leave the vessel while at sea. Abandonment of it in port
before his
Page 305 U. S. 431
discharge, to avoid unnecessary dangers of employment, exposes
him to the risk of loss of pay and to the penalties for desertion.
[
Footnote 2] In the performance
of duty, he is often under the necessity of making quick decisions,
with little opportunity or capacity to appraise the relative safety
of alternative courses of action. Withal, seamen are the wards of
the admiralty, whose traditional policy it has been to avoid,
within reasonable limits, the application of rules of the common
law which would affect them harshly because of the special
circumstances attending their calling.
The Arizona v. Anelich,
supra, 298 U. S. 123,
and cases cited;
Calmar Steamship Corp. v. Taylor,
303 U. S. 525. It
is for this reason that remedial legislation for the benefit and
protection of seamen has been liberally construed to attain that
end.
Chelentis v. Luckenbach S.S. Co., 247 U.
S. 372,
247 U. S.
380-381;
Jamison v. Encarnacion, 281 U.
S. 635,
281 U. S. 639;
Alpha S.S. Corp. v. Cain, 281 U.
S. 642;
Cortes v. Baltimore Insular Line,
287 U. S. 367,
287 U. S. 375;
Warner v. Goltra, 293 U. S. 155,
293 U. S.
157.
Any rule of assumption of risk in admiralty, whatever its scope,
must be applied in conjunction with the established admiralty
doctrine of comparative negligence and in harmony with it. Under
that doctrine, contributory negligence, however gross, is not a bar
to recovery, but only mitigates damages. There being no defense of
assumption of risk where the seaman is without opportunity to use a
safe appliance, it seems plain that his choice of a defective
instead of a safe one, resulting in injury, does not differ in
either the quality of the act or in its injurious consequences, in
any practical way, from his correspondingly negligent use of a safe
or an unsafe appliance, where its use has contributed to an injury
resulting from a breach of duty by the owner.
See The
Wanderer, 20 F. 140;
The Frank and Willie, 45 F.
494;
Page 305 U. S. 432
John A. Roebling's Sons Co. v. Erickson, 261 F. 986,
987;
Storgard v. France and Canada S.S. Corp., 263 F. 545.
In either case, the seaman's negligence is a contributing cause of
his injury, without which the ship owner would be liable to the
full extent of the damage.
The incongruity and practical embarrassments in the application
of a rule that the negligence in the one case bars recovery, while
that in the other only reduces the recoverable damages, are
evident. The common law is consistent in holding that both
contributory negligence and assumption of risk are defenses. But,
other considerations apart, it seems inconsistent, and an
impracticable refinement, to apply the rule for which petitioner
contends in a system of law which maintains the comparative
negligence rule to the fullest extent. This was recognized in
Olson v. Flavel, supra, and
The Julia Fowler,
supra, where the choice by the seaman of an unsafe appliance
was held not to bar recovery, but to be a proper basis for a
substantial reduction of damages because of the negligence of the
choice. In
The Julia Fowler, supra, the eminent admiralty
judge, Addison Brown, held that a seaman who had suffered injury
through the deliberate use of a halliard known to be defectively
spliced when a sound rope was available was entitled to recover,
but with diminution of damages because of his negligence in using
the unsafe rope.
We think that the consistent development of the maritime law in
conformity to its traditional policy of affording adequate
protection to seamen through an exaction of a high degree of
responsibility of owners for the seaworthiness of vessels and the
safety of their appliances will be best served by applying the rule
of comparative negligence, rather than that of assumption of risk,
to the seaman who makes use of a defective appliance knowing that a
safe one is available. The power of the trial judge
Page 305 U. S. 433
to guide and instruct the jury, and his control over excessive
verdicts, afford as adequate a protection to owners as in any other
case where the negligence of the seaman, whatever its degree, has
contributed to an actionable injury.
Upon the facts of this case, there was no error in the charge of
the trial court as to assumption of risk. Its instruction as to the
application of the rule of comparative negligence was general, and
no exception was taken to it. Petitioner would have been entitled
to a more specific instruction, if requested, as to the appropriate
effect upon the amount of the verdict of the relative degrees of
petitioner's and respondent's negligence if the jury should find
that respondent had knowingly failed to choose an available safe
method of doing his work.
We leave to future cases as they may arise the determination of
what rule is to apply in cases where the seaman's election to use
an unsafe appliance is in disobedience of orders or made while not
on duty.
Affirmed.
MR. JUSTICE McREYNOLDS thinks the petitioner's request for the
charge in respect of assumption of risk should have been granted,
and that, for that reason, the challenged judgment should be
reversed.
MR. JUSTICE ROBERTS took no part in the consideration or
decision of this case.
[
Footnote 1]
In
Tampa Interocean S.S. Co. v. Jorgensen, 93 F.2d 927,
930, the Circuit Court of Appeals for the Fifth Circuit, in
affirming a judgment in favor of seaman, took occasion to approve
the following instruction by the trial court to the jury:
"You are instructed that, if the plaintiff was furnished two
methods of entering the 'tween deck space, one obviously safe and
the other obviously unsafe, and if the plaintiff knew the safe
method and notwithstanding chose the unsafe method, the defendant
is not liable."
[
Footnote 2]
See R.S. § 4596, 46 U.S.C. § 701.