Seaman May Contribute to Injury When Given General Order
Knight v. Kirby Offshore Marine Pac., L.L.C., 983 F.3d 172, 2020 U.S. App. LEXIS 39728 * (5th Cir., Dec. 17, 2020)
When may a seaman be held to contribute to his injury in the service of the vessel? A divided panel of the Fifth Circuit held that when a seaman is given a general order, he or she may contribute to the injury resulting in a proportionate reduction of damages. The seaman was employed by Kirby on M/V SEA HAWK, a tug towing a barge from Washington to Alaska. (2020 U.S. App. LEXIS 39728 * at 2) He and another seaman were ordered by the captain to change out the stern line which was chafed. (Id.) While installing the new line, Knight stepped on the old line which was placed on the deck injuring his ankle. (Id.) The trial court held Knight 50% at fault and reduced the award accordingly. (Id. at * 3) His counsel asserted that a seaman may not be held to contribute to his injury as a matter of law relying on Williams v. Brasea, Inc., 497 F.2d 67 (5th Cir. 1974). (Id.)
Judge Barksdale who authored the plurality opinion in which Judge Ho joined in parts I, II.A.2, II.B, and III stated that the language of Williams v. Brasea, Inc. on which the claimant relied was dictum. Judges Ho and Elrod disagreed on that point. (Id. at * 6) She stated that the jurisprudence of the Fifth Circuit makes a distinction between general and specific orders. (Id. at * 8) Under Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc), a seaman must use ordinary prudence under the circumstances. (Id. at * 9) The order given in this case was a general order within the normal duties required of the claimant who was an experienced seaman. (Id. at * 11) Thus, the court was not precluded from finding him also negligent. (Id.)
However, as there was no evidence to support the finding that placing the line on the deck, the finding of 50% fault was clearly erroneous. (Id.)
The claimant also appealed the award of $60,000 in general damages. Though on the lower end of the spectrum for similar injuries, the award was not clearly erroneous. (Id. at * 17-18)
The matter was affirmed in part and vacated in part and remanded to assign fault for stepping on the line. (Id. at * 17)
In dissent, Judge Elrod maintained that the precedent of Williams v. Brasea, Inc. is binding and that a seaman may not be held to contribute to his injury for following orders. (Id. at * 19) In addition, the award of $60,000 in general damages was clearly erroneous.
