Burden of proving that mortgagee, guarantor of mortgage, or any similar encumbrancer, not holder of equitable title, is employer for 46 USCS Appx section 688 purposes, is on one who asserts it. Fitzgerald v A. L. Burbank & Co. (1971, CA2 NY) 451 F2d 670, 14 ALR Fed 525.
In action under 46 USCS Appx section 688, it is not incumbent on defendant to make proof of any facts upon which it relies as defense until plaintiff has established prima facie liability of defendant for injuries sustained by plaintiff. Lykes Bros.-Ripley S. S. Co. v Pluto (1940, Tex Civ App) 146 SW2d 414, writ dismd.
662. Contributory negligence and assumption of risk
Employer has burden of proof to establish that seaman assumed risk of injury. W. R. Chamberlin & Co. v Rylander (1934, CA9 Cal) 68 F2d 362, 1934 AMC 192.
In Seaman’s action under 46 USCS Appx section 688, defendant has burden to prove by preponderance of evidence, seaman’s contributory negligence. Mason v Mathiasen Tanker Industries, Inc. (1962, CA4 Va) 298 F2d 28, 5 FR Serv 2d 938, cert den 371 US 828, 9 L Ed 2d 66, 83 S Ct 23; Nolan v Greene (1967, CA6 Ky) 383 F2d 814; Fleming v American Export Isbrandtsen Lines, Inc. (1970, SD NY) 318 F Supp 194, affd in part and revd in part on other grounds (CA2 NY) 451 F2d 1329.
Even though burden of establishing contributory negligence rests upon defendant, in suit under 46 USCS Appx section 688, contributory negligence may be shown by plaintiff’s own evidence or may be fairly inferred from all facts and circumstances of case. Honea v Matson Navigation Co. (1972, ND Cal) 336 F Supp 793.
“Reasonable care” standard applies to defendants’ counterclaim in seaman’s action alleging negligence under Jones Act and unseaworthiness of vessel, where defendants alleged contributory negligence, because standard for contributory negligence is traditional negligence standard of whether seaman exercised care which reasonably prudent person would have exercised under circumstances. Brown v OMI Corp. (1994, SD NY) 863 F Supp 169, judgment entered, claim dismissed (1994, SD NY) 1994 US Dist LEXIS 18239.
In seaman’s action for personal injuries, burden of proof of defenses of contributory negligence or act of fellow servant, if available, is on ship. Proctor v Sword Line, Inc. (1948, City Ct) 83 NYS2d 288.
663. Settlement and release
Burden is on party relying upon release to show that it was executed freely, without deception or coercion, and was made by seaman with full understanding of his rights. Law v United Fruit Co. (1959, CA2 NY) 264 F2d 498, cert den 360 US 932, 3 L Ed 2d 1546, 79 S Ct 1452.
Amount of settlement is not, in itself, determinative of validity of seaman’s release of action under 46 USCS Appx section 688, but inadequate settlement adds greatly to defendant’s burden of proving that no advantage was taken of seaman’s relatively weaker bargaining position. Morris v Fidelity & Casualty Co. (1970, ED La) 321 F Supp 320, affd (CA5 La) 441 F2d 1146.
In action by seaman, burden is on party claiming prior settlement as defense to prove that earlier settlement was entered into by seaman with full understanding of his rights. Concepcion v United States Navy (1983, SD NY) 575 F Supp 23.