A seaman’s duty to himself

Previous Legal Talk articles have addressed legal remedies available to seamen who are injured in the course of employment. The articles have covered the duties a vessel owner owes to crewmembers and a seaman’s rights under the warranty of unseaworthiness. This column covers the duties a seaman owes to himself.

A seaman is obligated under the Jones Act to work with ordinary prudence under the circumstances. The circumstances of a seaman’s employment include not only his reliance on the employer to provide a safe work environment but also his own experience, training, and education. To hold otherwise would unjustly reward unreasonable conduct and would fault seamen only for gross negligence, which was not the intent of Congress when it adopted the Jones Act. The reasonable person standard under a Jones Act negligence action is determined by answering the question: What would a reasonable seaman do in like circumstances? If a seaman becomes injured because he failed to act in a reasonable manner, he is guilty of comparative negligence and, in most cases, his recovery will be reduced by the percentage of his own fault.

Many jurisdictions apply the so-called “primary duty rule.” Under the rule, a seaman may not recover from his employer for injuries caused by the seaman’s failure to perform a duty imposed on him by his employment. However, the primary duty rule does not apply when a seaman is injured by a dangerous condition that he did not create and, in the proper exercise of his employment duties, could not have controlled or eliminated. The rule applies only to a knowing violation of a duty that is consciously assumed as a term of employment.

Although a seaman never “assumes the risk” of an accident while working aboard a vessel, he does assume the risks of his “calling.” These are the unavoidable risks that go along with his occupation. Such risks may include storms, heavy seas, wet decks, etc. A vessel owner has the right to expect that a seaman is capable of dealing with ordinary hazards that prevail even on a seaworthy vessel. There is no duty to warn of dangers that are obvious to the seaman through the use of ordinary senses. If a seaman is injured as a result of one of the normal hazards of his occupation, then the seaman incurs the loss himself.

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