Monday, January 6, 2014



 Things are very different today for American seamen grievously injured in the service of their ship than they were when I was on the bench.  Time works changes and brings into existence new conditions and purposes. Subtler and more far reaching means of discernment of the true, authentic,ordinary safe practices of seamen are more available to the court today due to all of the detailed safety regulations that have been promulgated over the last half century. One of the great challenges for federal judges has always been in the realm of admiralty, so few of us ever went to sea, or have any unique understanding of the specialized vocabulary of the seaman and his craft. In my days on the bench this led to an over reliance on the pronouncements of expert witnesses. The progress of the nautical arts and sciences towards standardization of practices has been reflected in modern times by the regulatory work of the U.S. Coast Guard and the codes and standards work of the International Maritime Organization, a body of the United Nations, an organization that did not exist during my judicial tenure. While justices may still need some clarification from experts on occasion, ordinary legal research skills will most often reveal what the prudent practice is by referral to increasingly comprehensive regulations. Even before my time on the bench in The Pennsylvania  [86 U.S. 125 (1873)] it was held that in a collision the vessel which had violated a safety statute was presumed to be at fault. A vessel subjected to the "Rule of the Pennsylvania" could only defeat the presumption of fault by demonstrating that its statutory violation not only did not cause the accident, but that it could not have contributed to causation.   A heavy burden of proof indeed and often insurmountable. Time and again the courts in giving effect to the Rule of the Pennsylvania expanded the concept of the "statutory violation" to include maritime safety regulations promulgated in response to statutes of the Congress requiring regulatory agencies, especially the U.S. Coast Guard to promulgate technical and detailed regulations dealing with a growing list of maritime safety concerns. Gradually the Rule of the Pennsylvania was expanded and applied to a variety of personal injury cases.

 Most admiralty authorities agree that the "Pennsylvania-Reyes Doctrine" generally operates to the plaintiff's advantage in maritime cases by reducing causation requirements and shifting the burden of proof to the defendant. Subsequent applications of the evolving doctrine that would eventually be called the Pensylvania- Reyes Doctrine allowed an "inference of causation on very thin facts" [see Wilkins v. American Export Isbrandtsen Lines, Inc. 446 F.2d 480, 2nd Cir. (1971). Additionally, it appears that when  the Pennsylvania-Reyes Doctrine is successfully invoked under the Jones act, contributory fault by the plaintiff may not be considered. Eventually the Fifth Circuit court, quite some time after my departure from the bench, articulated the concept of  the application of the "Rule of the Pennsylvania"  to personal injury cases in Reyes v. Vantage SS Co. [609 F.2d 140,5th Cir.(1980).  Since 1980, the concept that violation of a maritime safety statute or regulation shifts the burden of proof to the defendant employer in a maritime personal injury case has been referred to as the "Pennsylvania-Reyes Doctrine". While experience should teach us to be most on guard to protect freedom when the government's intentions appear beneficent, these safety regulations, codes and standards do appear to be a boon to the personal safety and security of American seamen.. With so much of prudent seamanship now codified in a form lending itself to ordinary legal research the chances of justice being swayed by the perjured testimony of a malevolent "expert" are greatly reduced.  Justices and seamen's lawyers alike today should available themselves of a knowledge of these regulations and the workings of the "Pennsylvania -Reyes Doctrine"

 Decency, security and liberty alike demand that when the safe way of performing an operation of seamanship is known that the ship owner and his officers should assure that the crew is properly provided with the correct equipment, organization, instructions, and supervision to both accomplish the task and avoid injury. Indeed safety is part of productivity. Why is it so often argued that there "wasn't time to do it right", when of necessity there is always time to do it over?

Editors note: The Justice will be back tomorrow in these pages and will be making appearances in our ADMIRALTY LAW SECTION and our AUTHORITATIVE LITERATURE SECTION in the near future. You can read more about the Pennsylvania-Reyes Doctrine in our AUTHORITATIVE LITERATURE SECTION by scrolling down to the online publication AMERICAN ADMIRALTY BUREAU COMMENTATOR VOLUME 1

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