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US Bodily Injury News November 2011 Primary Duty Rule – A forgotten


defense? Much has been made of the special duties owed by a shipowner to their employee, the seafarer, pursuant to U.S. law.


Karen C. Hildebrandt and Patrick Geraghty, Geraghty Suarez LLP


Under the Jones Act, a shipowner is liable for neglect that is, in any way, connected to a seafarer’s injury. As for the seaworthiness obligation, a ship, and its equipment, must be fit for the intended use of each, or the owner will be liable for a resulting injury, even if the shipowner was not at fault. Lastly, if the seafarer falls ill or is injured in the service of the vessel, he is owed maintenance and cure. And as is well known, since there are no worker’s compensation benefits for seafarers in the United States, courts evaluate claims of Jones Act negligence and unseaworthiness in favor of the injured seafarer.


But what of the duty owed by the seaman to his employer, the shipowner, as part of his employment? With every position aboard a vessel come certain responsibilities. What if the seaman fails to perform his duties – and he is injured as a result?


Seafarers owe duties to their employers too


The Primary Duty Rule is available to shipowners as a defense to a seafarer’s Jones Act negligence or unseaworthiness bodily injury claim.The Rule recognizes that a shipowner or employer can only remedy unseaworthy and negligently-caused conditions aboard a vessel through the acts of employees, the crew of that vessel.The shipowner must be able to rely on its crew to remedy conditions which arise during a voyage.To find otherwise would require in the shipowner to


provide an accident free ship, which is not the standard under the Jones Act negligence or unseaworthiness causes of action. Pursuant to the Primary Duty Rule, a seafarer cannot recover for an injury which is proximately caused by his violation of his immediate duty, even if that duty was to remedy an unseaworthy condition, or a condition negligently created by the shipowner or its employees – the crew.


For example, in a 2004 New York case (Modlin), the court applied the Rule to a chief engineer injured while cleaning parts of a machine that lacked safety guards. He had been on the vessel for six months and took no steps to remedy the unseaworthy lack of safety guards, and he did not notify the owner of the problem. Importantly, the chief did not create the unseaworthy condition; he failed in his duty to remedy it. He could have done so safely but did not. He had “consciously assumed” the duty to fix the safety guards, because the task was part of his duty as chief engineer. The court rejected his argument that the Rule applied only to a master and not a subordinate. The court inferred the chief had “knowingly” violated his duty by not fixing the safety guards, or notifying the owner of the problem, during the four to six months he had worked in the engine room.


As mentioned above, the Rule applies even if the seafarer must remedy an unseaworthy condition which is caused by the shipowner. Also, the duty


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