Maritime Primary Duty Doctrine Article
Given the Supreme Court of the United States' holding in Miles v. Apex Marine, 498 U.S. 19 (1990), the time has come for the Primary Duty defense(1) to be beached and buried. The critical core of the Miles decision is that judge-made law will not expand the remedies made available to a seaman where congress has legislated in this same area. In Miles, the Supreme Court stated:
- We no longer live in an era when a seaman and their loved ones must look primarily to the Courts as a source of substantive legal protection from injury and death; congress and the States have legislated extensively in these areas. In this era, an admiralty Court should look primarily to these legislative enactments for policy guidance. We may supplement these statutory remedies where doing so would achieve the uniform vindication of such policies consistent with our constitutional mandate, but we must also keep strictly within the limits imposed by congress. Congress retains superior authority in these matters and an admiralty Court must be vigilant to not overstep the well considered boundaries imposed by federal legislation. These statutes both direct and delimit our actions.
Congress has statutorily directed that damages in Jones Act Seaman cases shall be reduced by the seaman's comparative fault. In contrast, the Primary Duty Doctrine is a judge-made General Maritime Common Law that is a complete bar to a seaman's recovery. Under the Primary Duty Doctrine, a seaman cannot recover from his employer for injuries caused by his own failure to perform a duty imposed upon him by his employment. California Home Brands v. Ferreira, 871 F.2d 830 (9 th Cir. 1989).
Where the Primary Duty Doctrine is imposed, any secondary negligence of the employer or unseaworthiness of the vessel is ignored. Congress, by enacting the comparative fault standard, 45 USC 53,(2) has declared that this is too harsh a penalty and, rather, the comparative fault of the two parties must be balanced one against the other. 45 USC 53 states, in part:
- In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of the this chapter to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory fault shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee....
The Supreme Court's decision in Miles proves a clear directive to the lower courts relating to the creation of maritime common law. In Miles, the Court stated: "maritime law is now dominated by federal statute, and we are not free to expand remedies at will simply because it might work to the benefit of seamen...." The corollary is also true; where congress has spoken on the issue of comparative fault, judge-made law should not be created to circumvent that statute simply because it works to the benefit of the shipowner or employer.
In deciding Bernard v. Maersk Lines Ltd., 22 F.3d 903 (1994),(3) the Ninth Circuit stated that in applying the primary duty doctrine:
- The important thing... is to distinguish between [the duty to avoid contributory negligence], which the law imposes upon the injured person, regardless of any conscious assumption of a duty towards the wrongdoer, and a duty which the injured person has censoriously assumed as a term of employment... [only ] the second is a bar to recovery under [the Jones Act].
No matter how the Primary Duty Doctrine may be gymnastically characterized, it will always remain in conflict with congress' directive that comparative fault shall be the method of reducing seamen's damages for their own fault. In appropriate circumstances, the seaman may be found 100% at fault for his own injuries, thereby providing ample protection to the vessel owner and the seaman's employer. However, where the employer's negligence contributes to the injury of the seaman's injury, even if the seaman breach a duty which he was "primarily" responsible for, comparative fault should be used to reduce his damages, and his claim should not be barred in total.
A shipowner has a non delegable duty to provide a seaworthy vessel. An owner must supervise and properly train its crew. Vessel owners and employers should not be shielded from liability from their proportional fault for causing an injury through negligence or unseaworthiness by the Primary Duty Doctrine. Only a faultless employer may utilize the primary duty defense, in which case the seaman would be 100% at fault under comparative fault standards.
Given the Court's holding in Miles and its subsequent interpretation by many District Courts and Circuit Court of Appeals to limit damages, it is submitted that not only should the Primary Duty Doctrine be cabined as suggested by Ninth Circuit in Bernard, but the time has come that the doctrine should be beached and finally buried.
If you have been injured at sea, please contact an experienced maritime law attorney at Stacey & Jacobsen, PLLC today for a free initial consultation and case evaluation.
(1)The Primary Duty Doctrine was first created in Walker v. Lykes Bros. S.S.,193 F.722 (11 th Cir.1952).
(2)The Jones Act incorporates by reference FELA.
(3)In Northern Queen Fisheries v. Kinnear, 298 F.3d 1090 (2002), the Ninth Circuit again employed the Primary Duty Doctrine; however, no challenge was made to the viability of the doctrine in light of Miles