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April 2013

California Federal Court: “Primary Duty Rule” No Bar to Third Mate’s Personal Injury Claims

Employers of Jones Act seamen sometimes try to defeat the seaman’s personal injury or death case by invoking the “Primary Duty Rule,” sometimes also known as the Walker-Reinhart Doctrine, after the two cases which first announced the Rule, Walker v. Lykes Bros., 193 F.2d 772 (2d Cir. 1952), and Reinhart v. United States, 457 F.2d 151 (9th Cir. 1972).

Under the Primary Duty Rule, a seaman may not recover from his employer for injuries caused by his own failure to perform a duty imposed on him by his employment.  And, if a seaman is found to have violated the Rule, his Jones Act negligence and general maritime law unseaworthiness claims can be completely barred.  But, the Rule has three limitations: First, the seaman must have consciously assumed the duty as a term of employment.  Second, the dangerous condition which injured the seaman must have been created by the seaman or could have been controlled or eliminated solely by the seaman in the proper exercise of his or her employment duties.  Finally, the seaman must have knowingly violated a duty consciously assumed as a condition of employment.

By implication, the Rule has three limitations.  First, it will not bar a claim of injury arising from the breach of a duty the plaintiff did not consciously assume as a term of his employment.  Second, it does not apply where a seaman is injured by a dangerous condition he or she did not create and, in the proper exercise of his or her employment duties, could not have controlled or eliminated.  Third, the rule applies only to a knowing violation of a duty consciously assumed as a term of employment.

In Barry v. United States, 2013 U.S. Dist. LEXIS 48915 (N.D. Cal. Apr. 1, 2013), the plaintiff, Stephen Barry, the vessel’s Third Mate, was overseeing a mooring operation at Newport News, Virginia.  A stopper line broke.  This caused the mooring line to strike and injure Barry’s left leg.  Barry sued for negligence under the Jones Act and, under the general maritime law, for unseaworthiness and maintenance and cure.  The Court found the stopper line provided by the defendant “was of insufficient tensile strength to perform the job for which it was intended.”

The Court thus found the defendant liable for Barry’s injury under his Jones Act claim.  It held the defendant had a duty to provide Barry with a safe working environment, including adequate equipment to perform his duties, but breached this duty when it supplied Barry with “a stopper too weak to perform the mooring operation in a manner which seamen would customarily expect to be safe.  During a mooring operation, a seaman normally would expect a stopper to withstand stress equivalent to one-half of a mooring line’s capacity, in this case 30 tons. The stopper on the Vessel, however, could take only 20 tons before breaking. Defendant and its agents had notice of this dangerous condition because they knew, or should have known, the customary equipment strength requirements. Moreover, Defendant and its agents procured the 1″ stopper nylon line and thus knew, or should have known, of its inadequate strength. Because Defendant negligently provided a stopper that could endure only 20 tons of stress, and not the 30 tons that a reasonable seaman would expect, the stopper failed during the mooring operation when subjected to no more than 24 tons of tension. This failure caused the mooring line to strike and injure Plaintiff.”

Since the Court found the defendant failed to prove Barry acted unreasonably for a seaman during the mooring operation, it concluded he was not subject to a contributory negligence finding nor did he violate the Primary Duty Rule as to his Jones Act negligence claim.

Finally, the Court found Barry had proved his general maritime law unseaworthiness claim by showing the stopper was not reasonably fit for its intended use.  As to this claim as well, the Court held the defendant failed to prove Barry acted unreasonably for a seaman during the mooring operation and therefore he was “not subject to contributory fault or the primary duty rule….”


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