One of the joys of blogging is to be constantly on the hunt for the jewels of jurisprudence. The fun opinion! A recent admiralty case from the Second Circuit Court of Appeals actually uses the word lubberly.
The case is Barlow v. Liberty Maritime and the opinion can be found here. Read the footnotes and you will learn the definition of moor, fore, aft, paying out, spring lines, marry, tugs, and breast lines.
A very, VERY, experienced mariner was working on a ship that was having some difficulties with its mooring line while at a grain terminal in the Amazon River. Despite his license, he was working as a Third Mate onboard. When the mooring line difficulty arose, the experienced Third Mate took charge of the situation, over the command of the Second Mate. Apparently, the Third Mate thought the command was just a "polite request" and not an actual order, prompting the 2nd Circuit to note that "Directions from an officer to a subordinate in an emergency are not requests, but orders to be obeyed, however phrased." The court cited to 46 U.S.C. 11501(5) which authorizes ship masters to confine disobedient sailors and put them on a 1000 calorie per day diet.
Alas, says the 2nd Circuit, the Third Mate's effort to correct the mooring line situation resulted in the mooring line hitting him and causing him injury.
He brought suit for the various injuries he suffered under a negligence theory and unseaworthiness. The jury was charged with an instruction about actions in emergency, but the Third Mate wanted an instruction invoking the maritime rescue doctrine. Under the Fourth Circuit's "maritime rescue" doctrine, an action would have to be wanton and reckless before any fault for the resulting injuries could be attributed to a claimant. The trial court instructed the jury using the "emergency" doctrine which judges an action based on what a prudent seaman would do under similar circumstances.
The Fourth Circuit decision in Furka v. Great Lakes Dredge & Dock Co., Inc., 755 F. 2d 1085 (4th Cir. 1985) was cited as the most clear articulation of the rescue doctrine. In that case, the Fourth Circuit court found that a claimant could not be contributorily negligent (thereby reducing his/her damage award) unless the rescue attempt was "wanton or reckless." Other courts have followed suit or have similar rules. Wharf v. Burlington N. R.R. Co., 60 F.3d 631 (9th cir. 1995); Grigsby v. Coastal Marine Serv. Of Tex., Inc., 412 F.2d 1011 (5th Cir. 1969).
The 2nd Circuit declined to follow Furka [circuit split dear readers] and held that under modern comparative negligence theories are not as harsh as contributory negligence ones that threatened a claimants recovery in toto and not just acting to be a reduction for comparative fault.
Under a reasonable seaman standard, there was proof to support the jury's assessment of 90 percent of fault to the claimant (which reduced his damages by that percentage) and the jury verdict was affirmed.
The jury has spoken. Tread carefully when your supervisors tell you to do something. Especially in an emergency.
