Wednesday, January 8, 2014



     File:Brandeisl.jpg   EDITOR'S NOTE:  Our Admiralty Legal Correspondent and Analyst, the late Justice Louis Brandeis. See Our post of Sunday January 5, 2014  for an explanation by the Great Namazu of how we were able to retain the services of a ghost who writes. Also if you didn't catch Justice Brandeis's earlier essays on the Pennsylvania -Reyes Doctrine or Punitive Damages in Admiralty you might want to check them out; there is a strong correlation between these earlier essays and today's post.


 Said the boatswain to the seaman "One hand for you and one for the ship". This was said often enough and for such an extended historical period that something based on all of the nuances of that phrase found its way into admiralty law. Certainly the phrase indicated that a seaman had a duty of concern for his own safety, but also a duty towards the mission of the ship. All too often a maritime personal injury case , like a salvage case, became a contest between two "sea stories". In the case of a claim for a salvage award for rescue towing, the towed vessel inevitably claimed that they had a minor engine problem which they were quickly resolving in a glass calm sea when a tug came along side and with out so much as a "by your leave sir" affixed a towing hawser and towed the ship a few hundred yards to safe harbor. The tug master's story always begins with "it was a dark and stormy night". Similarly almost as soon as seamen won the right to sue for personal injury incurred in the service of the ship, ship owners began to see every accident as a direct result of carelessness and imprudence on the part of the seaman, while seamen attributed injury to some element of "unseaworthiness" of the ship. The Pennsylvania -Reyes Doctrine placed upon the ship owner a most serious duty towards the provision of a seaworthy vessel. Under the Pennsylvania-Reyes Doctrine a ship owner was presumed liable for any accident that involved, in some cases even tangentially a violation of a safety regulation. Owners argued that seamen should be held to a high standard of care relative to knowing, applying, and rigidly following the best and safest work practices for every evolution of seamanship.

 The courts however, wanted to know exactly what was the real duty of the seaman towards knowing and applying best practices as compared to his duty to follow orders to carry out the mission of the ship. The court couldn't help but notice that ship's crews are divided into officers and seamen. This would certainly imply leaders and followers. When questioned on the relative duty of ordinary and able seamen to obey orders vice know and apply best work practices this exchange once occurred in the Fifth Circuit

QUESTION ; "Captain, what is the duty of the common seaman relative to obeying orders vice applying safe work practices to the task at hand?

RESPONSE: " When the boatswain says 'shit', the correct reply of the seaman is; 'how high and what color sir'! 

QUESTION: "Are we to take it then that in your opinion a seaman has a very high order of duty to obey orders and a relatively low order of duty to know and apply the best and safest work practices?"

RESPONSE:  "An ordinary seaman takes no competency examination at all. An able seaman must demonstrate minimal work experience and pass a written examination and some practical skill demonstrations involving the tying of knots , the boxing of a compass, and the handling of life craft.
That and the ability to grab his ass with both hands is all that is required of an able seaman. If we expect a seaman to know and apply best work practices as you say....they have to pass an officers exam."

 Quite a number of similar exchanges under oath may be found in the trial transcripts of every federal district court located in or near a port. It became clear to the court that crewmen, ordinary or able, had a high order of duty to obey orders and little obligation to know the best and safest work practices, they should be able to rely on their officers for proper supervision including the provision of the necessary safety elements. Officers on the other hand had a  more complex duty relative to safe work practices. They had a duty towards the seamen and were often acting as agent for owner in this regard. But officers were seamen too and sometimes subjected to hazard by fellow crewmen, visitors such as long shoremen, or indeed their own negligence. The courts have long needed a comprehensive standard of measure of these various duties. To this date there is no universally agreed to and adhered to in every jurisdiction standard. But there is a sort of best recognized test, even if not universally applied it is know as the WALKER-REINHART DOCTRINE.

 The maritime employer under the general maritime law has a duty to provide a seaworthy vessel. When unseaworthiness is alleged the effects of the Walker -Reinhart Doctrine should be considered. [ "the doctrine" evolves from these two cases: Walker v. Lykes Brothers  SS CO. , Inc. U,S. Court of App.. 2nd Cir. 1952, case no. 114, Docket 22180 and Robert Reinhart v. United States U.S. Court of App. 9th Cir., 1972 no. 25039]. This "doctrine" reflects the apparent trend in the general maritime law to hold seamen to a high order of duty relative to obeying orders and a very low order of duty relative to knowing, choosing, or employing the safest work methods. Walker -Reinhart holds that a momentary inattention to one's own safety should not be treated as so serious a fault as the breach of duty assumed by an employee for the protection of others, although incidentally for his own benefit too. Both Walker and Reinhart were officers vice non supervisory seamen. The officer status of both injured plaintiffs has affected the application of the "doctrine" in a number of ways and was the cause for the court's comparison of the duty to look out for one's self with the duty to look out for others.

 This distinction the courts made between duties to others and duty to look out for one's self has also given rise to what some call the "WALKER-REINHART DEFENSE" . The defense argument holds that if a particular crewman, such as master or mate, was responsible for correction of a hazard and knew of the hazard and did not take corrective action, he has no cause of action if injured by the hazard. Argument has been made with varying results that any seaman injured as a result of neglect of a personal duty has no cause of action.

 Most often this "doctrine" has been construed to articulate the primacy of the seaman's duty to obey orders and his relatively low order of duty to know and apply the safest work methods. The comparison of the relative fault of Walker and Reinhart in their own injuries relative to their duties as officers for the safety of others has somewhat clouded this aspect of the "doctrine". However the most important holding in the two cases usually works to the advantage of the plaintiff seaman.  That holding is; that neither contributory negligence nor voluntary assumption of risk is a defense in action for breach of warranty of seaworthiness. Walker Reinhart  can be a powerful sword for the seaman's advocate but it is two edged and may sometime play to the advantage of the defense. He who cites these cases beware. There is a lot more information on this "doctrine" in the AUTHORITATIVE LITERATURE SECTION of this blog, once in the section just scroll down to the American Admiralty Bureau's COMMENTATOR VOLUME 1 COMMENT NO.2. There you will find not only additional discussion but a list of holdings and cites to related cases.


 OK we have to hand it to Namazu we are having trouble believing in judicial ghosts but he did find a legal scholar willing to work for our low wages. But while we respect the opinion of the good justice I would be remiss in my duty if I did not warn our readers that nothing anywhere in this blog should be considered legal advice. Lawyers who are capable of being their own judge of the utility of any scrap of legal information may of course do as they see fit. But we can take no responsibility for the legal musings of a dead justice or a live giant catfish. Also we'd like to once again remind our non lawyer readers that he who attempts to represent himself in a legal proceeding has a fool for a client. 

No comments:

Post a Comment