US Bodily Injury News November 2011


at issue does not have to pertain to safety, and the crewmember’s rank is relevant only in determining his duties. However, the Rule will not bar recovery when a seafarer tries to perform a duty but fails; the Rule pertains to duties the seafarer chooses not to fulfill.


Accordingly it would be a violation of the Rule not to act when action is required. A federal court in Pennsylvania (Elliott) applied the Primary Duty Rule to a suit by a master of the vessel after he slipped and fell on a “runner rug” on a waxed linoleum floor. Presumably, plaintiff ’s claim was the floor was slippery because a chambermaid had left excessive wax on the floor. However, the court found no evidence the floor was excessively waxed. Moreover, the court recognized that the matter of whether to wax the floor was exclusively left to the various masters on the vessel. Plaintiff said he verbally gave orders to the chambermaid not to wax the floors when he was on board. He


claims he also posted the order. However, he did not follow-up to ensure the order had been carried out. Therefore his suit failed.


The Rule however should not be confused with negligence or comparative fault, which determines the degree of shipowner, or seafarer, fault.The Primary Duty Rule pertains to the seafarer’s conscious decision not to perform a duty he is obligated to perform.The duty is determined by his rank and the circumstances.


In a lawsuit the defendant shipowner has the burden of proof with regard to the Primary Duty Rule. The defense should be pled in the answer to the complaint. The shipowner would have to show, in essence, that the plaintiff seaman owed a duty to the shipowner as part of his employment; that he failed to perform the duty in the circumstances present; and that he was injured as a result of his failure.


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