Page 18: of Marine News Magazine (April 2011)

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18 MN April 2011

LEGAL

Regular crewmembers of commercial vessels who are injured on the job are not covered by a state or federal work- ers’ compensation act. Their remedy if they are hurt includes the right to file a lawsuit against their employer under the Merchant Marine Act of 1920, commonly known as the Jones Act, which is now codified at 46 United States Code Section 30104, and which reads as follows: “§ 30104. Personal injury to or death of seamen:

A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the

United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.”

As you can see, the Jones Act borrows its wording from the personal injury and death statute governing rail work- ers, the Federal Employers’ Liability Act, codified at 45

United States Code Section 51, and referred to for short as the FELA. The FELA states in pertinent part: Ҥ 51. Liability of common carriers by railroad, in inter- state or foreign commerce, for injuries to employees from negligence; definition of employees:

Every common carrier by railroad … shall be liable in damages to any person suffering injury while he is employed by such carrier … or, in case of the death of such employee, to his or her personal representative … for such injury or death resulting in whole or in part from the neg- ligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equip- ment.”

The U.S. Supreme Court and state and federal courts throughout the country have long interpreted the “in whole or in part” language of the FELA (and thus also of the Jones Act) to mean that, to win their cases, rail work- ers and seamen only had to prove their employer’s negli- gence “played a part, no matter how small” in bringing about or causing their injury. For instance, in 1957, in

Rogers v. Missouri Pacific Railroad Co., the U.S. Supreme

Court described the FELA and its lenient causation stan- dard: “Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employ- ee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with rea- son, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death.”

The relaxed, favorable-to-the-plaintiff causation stan- dard for the federal statutory negligence claims embodied in the FELA and the Jones Act came to be called the “featherweight” causation standard. The featherweight

U.S. Supreme Court to Scrutinize Statute on

Seaman’s Personal Injury & Death

By Frederick B. Goldsmith

On November 29, 2010, in the case of CSX

Transportation, Inc. v. McBride, the U.S. Supreme

Court agreed to decide whether the FELA requires proof of proximate causation. It is a distinct possibility that, given the current conservative composition of the court, the Supreme Court will hold in McBride that a rail worker must prove the railroad’s negligence was a “proximate cause” of his injuries, jettisoning the more lenient “featherweight” causation standard.