637. Generally
During trial of action brought under 46 USCS Appx section 688, judge has duty to see that facts are presented clearly and he may ask pertinent questions of witnesses to that end, but he should exercise self-restraint and preserve atmosphere of impartiality and detachment. Pariser v New York (1945, CA2 NY) 146 F2d 431.
Evidentiary standard in Jones Act (46 USCS Appx section 688) and Federal Employers’ Liability Act (45 USCS section section 51 et seq.) is same. Barboza v Texaco, Inc. (1970, CA1 Mass) 434 F2d 121.
Plaintiff’s uncorroborated testimony concerning employer’s negligence in maintaining unseaworthy vessel is sufficient evidence of liability where testimony is uncontroverted by defendant; district court could properly infer that employer was or should have been aware of danger. Havens v F/T Polar Mist, U.S.C.G. (1993, CA9 Wash) 996 F2d 215, 93 CDOS 4519, 93 Daily Journal DAR 7719.
Degree of proof required for recovery under Jones Act (46 USCS Appx section 688) is greater than under action for unseaworthiness, inasmuch as seaman is required to prove negligence to recover under Jones Act, whereas seaman can recover regardless of fault, or lack of it, on unseaworthiness charge. Reed v The Arkansas (1950, DC Cal) 88 F Supp 993.
638. Circumstantial evidence
Under 46 USCS Appx section 688 eye witness to circumstances of death is not essential to award. Petition of United States Steel Corp. (1970, CA6 Ohio) 436 F2d 1256, cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1649, reh den 403 US 940, 29 L Ed 2d 720, 91 S Ct 2247 and cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1660, reh den 403 US 924, 29 L Ed 2d 703, 91 S Ct 2227 and cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1665 and later app (CA6 Ohio) 479 F2d 489, cert den 414 US 859, 38 L Ed 2d 110, 94 S Ct 71 and (disapproved on other grounds Sea-Land Services, Inc. v Gaudet 414 US 573, 39 L Ed 2d 9, 94 S Ct 806, reh den 415 US 986, 39 L Ed 2d 883, 94 S Ct 1582 and (not followed Alfone v Sarno, 87 NJ 99, 432 A2d 857, 26 ALR4th 1237)).
Circumstantial nature of evidence in unwitnessed accident case does not negate finding for plaintiff in case under 46 USCS Appx section 688. Hebert v Otto Candies, Inc. (1975, ED La) 402 F Supp 503.
639. Presumptions and inferences
In cases under 46 USCS Appx section 688, there must be some evidence from which jury can infer that unsafe condition for which plaintiff sues existed and that owner knew or, in exercise of due care, should have known of it. Perry v Morgan Guaranty Trust Co. (1976, CA5 La) 528 F2d 1378.
Summary judgment is warranted, despite “featherweight” burden of proving causation in Jones Act case and permissible inferences from unexplained events, where seaman was last seen walking away from defendant ship across bow of barge. Re Cooper/T. Smith (1991, CA5 La) 929 F2d 1073.
Approval by Coast Guard authority is persuasive, but not conclusive, on question of sufficiency of equipment. Tatem v Southern Transp. Co. (1947, DC Pa) 72 F Supp 44, affd (CA3 Pa) 166 F2d 1020.
In action under 46 USCS Appx section 688, it is presumption that plaintiff was engaged in performance of his duties and was exercising due care for his own safety at time of his injury. Willis v American Barge Line Co. (1949, DC Pa) 87 F Supp 919.
Absolute duty of shipowner to furnish seaworthy ship is completely independent of any duty under 46 USCS Appx section 688 to exercise reasonable care, and breach of latter duty can aggravate, or lead to, breach of former; in view of this and fact that furnishing ship which is unseaworthy raises rebuttable presumption of causation when ship is lost at sea, similar presumption must also arise with regard to negligence. Re Marine Sulphur Transport Corp. (1970, SD NY) 312 F Supp 1081, affd in part and revd in part on other grounds (CA2 NY) 460 F2d 89, cert den 409 US 982, 34 L Ed 2d 246, 93 S Ct 318, 93 S Ct 326.
640. –Causation
In determining proximate cause in action based on 46 USCS Appx section 688, jury is entitled to make permissible inferences from unexplained events. Alaska S.S. Co. v Petterson (1954) 347 US 396, 98 L Ed 798, 74 S Ct 601, reh den 347 US 994, 98 L Ed 1127, 74 S Ct 848.
In death actions sounding in negligence under 46 USCS Appx section 688, when exact circumstances of casualty are known, United States Supreme Court has fundamentally transformed traditional negligence law respecting causation by permitting finder of fact to supply by inference many elements normally required to be proven by plaintiff; as to defendant’s negligence constituting legal cause of accident, slight evidence is sufficient so long as inference is that which reasonable, prudent men might reach on basis of evidence; by use of extension of res ipsa loquitur principle regarding permissible inferences from unexplained events, finder of facts may infer requisite legal causation, and test is simply whether proofs justify with reason conclusion that employer’s negligence played any part, even slightest, in producing injury, it being immaterial that from evidence finder of fact may also with reason, on grounds of probability, attribute results to other causes, including employee’s contributory negligence. Admiral Towing Co. v Woolen (1961, CA9 Cal) 290 F2d 641.
Test to be applied in determining permissible inferences from unexplained events in cases arising under 46 USCS Appx section 688 is whether proofs justify with reasoned conclusion that employer’s negligence played any part, however slight, in producing injury or death for which damages are sought; in cases under 46 USCS Appx section 688, trier of fact is allowed measure of speculation and conjecture to settle dispute by choosing most reasonable inference and only when there is complete absence of probative facts to support conclusion reached does reversible error appear. Sweeney v American S.S. Co. (1974, CA6 Ohio) 491 F2d 1085.
Evidence that movant had prior history of back trouble before events of accident in question and that he suffered fall causing him injuries after accident in question are sufficient to support inference by jury that events of accident in question were not cause of movant’s back trouble. Ardoin v J. Ray McDermott & Co. (1982, CA5 La) 684 F2d 335, 11 Fed Rules Evid Serv 843.
Court will not second guess jury as fact finder were jury found causal nexus on basis of “some” probative evidence, “however small,” between plaintiff’s disease and defendant’s negligence in permitting his exposure to hydrocarbons on defendant’s boats. Davis v Odeco, Inc. (1994, CA5 La) 18 F3d 1237, reh, en banc, den (CA5 La) 1994 US App LEXIS 11831 and cert den 513 US 819, 130 L Ed 2d 32, 115 S Ct 78.
641. –Dependency or pecuniary harm
In action under 46 USCS Appx section 688 to recover damages for death of seaman, dependency of widow and minor children is presumed. Cleveland Tankers, Inc. v Tierney (1948, CA6 Ohio) 169 F2d 622, 1049 AMC 151.
Minor children of deceased are presumed to have suffered injury by his death irrespective of his contribution during life, but they must show reasonable anticipation of pecuniary benefit if death had not occurred. Re Uravic’s Estate (1932) 142 Misc 775, 255 NYS 638.
642. Res ipsa loquitur doctrine
Doctrine of res ipsa loquitur is applied in cases under 46 USCS Appx section 688. Johnson v United States (1948) 333 US 46, 92 L Ed 468, 68 S Ct 391.
Doctrine of res ipsa loquitur is inapplicable where at time of accident vessel was not in exclusive control of owners. Cruse v Sabine Transp. Co. (1937, CA5 Tex) 88 F2d 298, 1937 AMC 739, cert den 302 US 701, 82 L Ed 541, 58 S Ct 20, reh den 302 US 775, 82 L Ed 600, 58 S Ct 134.
Doctrine of res ipsa loquitur is not proof and does not supply want of proof; there is no basis for application of doctrine when thing that caused injury is under exclusive control and management of injured party. Asprodites v Standard Fruit & S.S. Co. (1940, CA5 La) 108 F2d 728, cert den 310 US 642, 84 L Ed 1410, 60 S Ct 1089.
In death actions sounding in negligence under 46 USCS Appx section 688, when exact circumstances of casualty are known, United States Supreme Court has fundamentally transformed traditional negligence law respecting causation by permitting finder of fact to supply by inference many elements normally required to be proven by plaintiff; as to defendant’s negligence constituting legal cause of accident, slight evidence is sufficient so long as inference is that which reasonable, prudent men might reach on basis of evidence; by use of extension of res ipsa loquitur principle regarding permissible inferences from unexplained events, finder of facts may infer requisite legal causation and test is simply whether proofs justify with reason conclusion that employer negligence played any part, even slightest, in producing injury, it being immaterial that from evidence finder of fact may also with reason, on grounds of probability, attribute results to other causes, including employee’s contributory negligence. Admiral Towing Co. v Woolen (1961, CA9 Cal) 290 F2d 641.
46 USCS Appx section 688 libelant, under allegation of negligence, has doctrine of res ipsa loquitur in his favor. Lind v American Trading & Production Co. (1961, CA9 Wash) 294 F2d 342, 1961 AMC 2467.
Resort to res ipsa loquitur is not warranted in absence of showing at least malfunction, failure or misuse of vessel, its appurtenances or gear, or some defect therein. Rabb v Canal Barge Co. (1970, CA5 Miss) 428 F2d 201.
Trial judge’s refusal to instruct jury that under doctrine of res ipsa loquitur it could infer negligence on part of shipowner under Jones Act (46 USCS Appx section 688) was proper, where specific instrumentality that caused seaman’s disappearance from ship was unknown, and there was not evidence that condition of vessel’s gear or appurtenances contributed to disappearance of seaman, and where there were many possible varying explanations of seaman’s disappearance, including being swept overboard if he had gone up on deck in spite of captain’s order to contrary, epileptic seizure, or suicide. Estate of Larkins v Farrell Lines, Inc. (1986, CA4 Md) 806 F2d 510.
Doctrine of res ipsa loquitur unquestionably has application in cause of action arising in admiralty, either under 46 USCS Appx section 688 or general maritime law. Higginbotham v Mobil Oil Corp. (1973, WD La) 357 F Supp 1164, supp op (DC La) 360 F Supp 1140, affd in part and revd in part on other grounds (CA5 La) 545 F2d 422 (disagreed with Smith v M/V Captain Fred (CA5 La) 546 F2d 119) as stated in Longmire v Sea Drilling Corp. (CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919 and (disagreed with Steckler v United States (CA10 Colo) 549 F2d 1372, 38 ALR Fed 188 (disagreed with Smith v United States (CA3 Pa) 587 F2d 1013)) and revd on other grounds 436 US 618, 56 L Ed 2d 581, 98 S Ct 2010, on remand (CA5 La) 578 F2d 565 and reh den 439 US 884, 58 L Ed 2d 200, 99 S Ct 232 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90) and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).
Where plaintiff pleads negligence both generally and specifically, doctrine of res ipsa loquitur may be relied upon. Radisich v Franco-Italian Packing Co. (1945) 68 Cal App 2d 825, 158 P2d 435.
643. –Explosions
In libel for damages for personal injuries caused by explosion which occurred while filling tanks with gasoline, doctrine of res ipsa loquitur does not apply merely because there was running engine. Callan v Cope (1948, CA9 Cal) 165 F2d 703.
Unexplained explosion or flash fire in inadequately ventilated sleeping quarters of crew of fishing boat justified inference that operators of vessel had failed to use due care to make sleeping quarters safe for occupancy of crew. Hill v Atlantic Navigation Co. (1955, CA4 Va) 218 F2d 654, 1955 AMC 542.
Res ipsa loquitur doctrine applied to explosion on boat, and injured seamen were entitled to recover. The Material Service (1934, DC Ill) 11 F Supp 1006, affd (CA7 Ill) 79 F2d 280, 1935 AMC 1453, cert den 296 US 653, 80 L Ed 465, 56 S Ct 370.
644. –Falling objects
Doctrine of res ipsa loquitur applies to action by seaman against United States for injuries resulting when seaman was struck on head by block, which fell in some unexplained manner. Johnson v United States (1948) 333 US 46, 92 L Ed 468, 68 S Ct 391, 1948 AMC 218.
Fall of turnbuckle barrel in loading operations warranted application of rule res ipsa loquitur. Fauntleroy v Argonaut S.S. Line, Inc. (1928, CA4 Md) 27 F2d 50, 1928 AMC 1193.
Res ipsa loquitur does not apply where seaman was injured by usual and expected swing of sling load and such accident as well may have been caused by his failure to avoid it as by negligence of injured man’s fellow workmen. Seville v United States (1947, CA9 Cal) 163 F2d 296.
Breaking of overhead tackle does not warrant application of doctrine res ipsa loquitur and burden of proving negligence is on employee suing for injuries resulting from such breaking. The Mercier (1933, DC Or) 5 F Supp 511, 1934 AMC 291, affd (CA9 Or) 72 F2d 1008, 1935 AMC 225.
Fall of rigging causing injury to employee does not warrant application of rule of res ipsa loquitur where rigging is not under control of defendant. Massa v Nippon Yusen Kaisha (1934) 264 NY 283, 190 NE 641.
645. –Other particular applications
Existence of insecurely fastened hatch cover, without showing of negligence on part of employees of ship did not permit application of doctrine res ipsa loquitur. Carlson v United States (1934, CA5 La) 71 F2d 116, 1934 AMC 841.
In action under 46 USCS Appx section 688 for injuries sustained when plaintiff slipped on zucchini squash while descending stairway, once the jury believed plaintiff was not responsible, it could infer that defendant was negligent under doctrine of res ipsa loquitur. Barboza v Texaco, Inc. (1970, CA1 Mass) 434 F2d 121.
In action for damages for death of bridge tender resulting when vessel crashed into bridge while attempting to pass through span of bridge, facts were such as to make applicable doctrine of res ipsa loquitur. Quinn v Southgate Nelson Corp. (1941, DC NY) 36 F Supp 873, affd (CA2 NY) 121 F2d 190, 1941 AMC 1214, cert den 314 US 682, 86 L Ed 546, 62 S Ct 185.
Sudden reversal of anchor chain was proper basis for application of res ipsa loquitur doctrine. Lejeune v General Petroleum Corp. (1932, Cal App) 13 P2d 1057, 1932 AMC 1472, subsequent op on reh 128 Cal App 404, 18 P2d 429.
Allegation that while plaintiff’s decedent was assisting in cleaning net on board defendant’s fishing vessel his apron was caught and he was drawn into drum of ship’s winch, throwing decedent against deck of vessel and inflicting injuries upon him which proximately caused his death did not preclude application of doctrine of res ipsa loquitur. Radisich v Franco-Italian Packing Co. (1945) 68 Cal App 2d 825, 158 P2d 435.
Seaman injured by falling through hatchway when steamship was fastened to dock, gives rise to presumption of negligence of vessel with respect to inspection, rules of res ipsa loquitur applying. Wychgel v States S.S. Co. (1931) 135 Or 475, 296 P 863, cert den 284 US 625, 76 L Ed 533, 52 S Ct 11 and (ovrld on other grounds Hust v Moore-McCormack Lines, Inc., 180 Or 409, 177 P2d 429).
Since shipowner had exclusive control of laying of temporary floor-boards on top of tiers of paper rolls in cargo hold and injury to seaman resulted from accident which ordinarily would not have happened had shipowner used due care, seaman’s proof of prima facie case invokes res ipsa loquitur. Carlson v Wheeler-Hallock Co. (1943) 171 Or 349, 137 P2d 1001.
646. Judicial notice
Court will take judicial notice that defendant is doing business within jurisdiction. Summerall v United Fruit Co. (1935, DC NY) 11 F Supp 963, 1935 AMC 1202, affd (CA2 NY) 80 F2d 1020, 1936 AMC 199, cert den 298 US 658, 80 L Ed 1384, 56 S Ct 680.
Court takes judicial notice that chains are put around hatches only when hatches are open to prevent longshoremen or those loading or unloading cargo from slipping into hold. Gelb v United States (1948, DC Cal) 75 F Supp 833.
Health, education and welfare mortality table is document published by United States, and courts can take judicial notice of document in federal case involving admiralty and 46 USCS Appx section 688. Nice v Chesapeake & O. R. Co. (1969, WD Mich) 305 F Supp 1167.
Court takes judicial notice of standard mortality tables. Roalsen v Oregon Stevedoring Co. (1928) 147 Wash 672, 267 P 433.
647. View by jury
Defendant’s request of trial court to allow jury to be brought onto vessel where defendant had not previously made such request was imposition of surprise on plaintiff which could not be allowed without continuance. Ralph v Harry Zubik Co. (1963, WD Pa) 214 F Supp 145, 7 FR Serv 2d 307, affd (CA3 Pa) 319 F2d 531, cert den 375 US 931, 11 L Ed 2d 263, 84 S Ct 332.
648. Credibility of witnesses
Since witness had every motive to deny having moved rods on engine of vessel without warning, after he had learned that his inattention had killed plaintiff’s decedent, fireman on vessel, jury was not bound to accept testimony of such witness that he had not moved rods before he got “jingle” bell. Rivas v McAllister Lighterage Line, Inc. (1945, CA2 NY) 151 F2d 848, 1945 AMC 1509, cert den 326 US 787, 90 L Ed 478, 66 S Ct 480.
In action under 46 USCS Appx section 688 to recover for injuries sustained in assault by fellow seamen, it was for jury to determine credibility of witnesses. Pittsburgh S.S. Co. v Scott (1947, CA6 Ohio) 159 F2d 373.
It was for jury to determine weight to be accorded conflicting testimony of both expert and lay witnesses. Emaldio v Pocahontas S.S. Co. (1966, CA4 Va) 355 F2d 55.
In action for personal injuries brought pursuant to 46 USCS Appx section 688, plaintiff’s income tax return and his failure to report certain earnings may be used in effort to discredit his veracity on witness stand. Stacey v Sea-Drilling Corp. (1970, CA5 La) 424 F2d 1272.
Where physician testified that prior work history would have no medical relationship to susceptibility of decedent to heart attack, it was error for court to withdraw from jury evidence of decedent’s overtime, as jury was not bound by perimeter of expert testimony, but rather was entitled to substitute its own practical judgment for that of expert. Wilkins v American Export Isbrandtsen Lines, Inc. (1971, CA2 NY) 446 F2d 480, cert den 404 US 1018, 30 L Ed 2d 665, 92 S Ct 679, reh den 405 US 969, 31 L Ed 2d 244, 92 S Ct 1166 and cert den 404 US 1018, 30 L Ed 2d 665, 92 S Ct 680.
Ship’s regular medical log maintained by ship’s surgeon can be properly admitted for impeachment purposes in action under 46 USCS Appx section 688. Poulsen v Oceanic S.S. Co. (1961, 1st Dist) 197 Cal App 2d 69, 17 Cal Rptr 421.
649. Miscellaneous
Court did not abuse its discretion in allowing plaintiff to use rebuttal to introduce three depositions which could have been properly introduced by plaintiff when he was presenting his evidence in chief. Casey v Seas Shipping Co. (1949, CA2 NY) 178 F2d 360.
In suit by drilling rig welder for injuries sustained in lifting luggage into employer’s van, there was sufficient evidence to support finding of employer’s negligence where testimony was conflicting as to why van entry door was not open and as to weight of luggage. Cobb v Rowan Cos. (1991, CA5 La) 919 F2d 1089.
Extent to which attorney-client privilege is recognized in admiralty cases is not to be determined by state law. Redfern v American President Lines, Ltd. (1963, ND Cal) 228 F Supp 227, 8 FR Serv 2d 34.13, Case 4.