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Maritime Update: Contributory Negligence/Comparative Fault in Seaman’s Cases

Bill Schwartz -  Posted on by Baldwin, Haspel, Burke & Mayer

In the case of Knight v Kirby Offshore decided by the Fifth Circuit Court of Appeals on December 17, 2020 (the Fifth Circuit covers Texas, Louisiana and Mississippi), they addressed the comparative fault of a seaman when following his superior’s orders. The decision is a good guide as to how the courts look at this type of situation.

Knight was a seaman aboard the M/V SEA HAWK, a tugboat owned by Kirby that was then towing a barge from the State of Washington to Alaska. The SEA HAWK housed a stern line used when entering and exiting ports to secure the barge to the tug. The line was  more  than  100-feet  long  and several inches thick. At one point the line chafed. Once the vessels were in the open sea and the stern line was no longer in use, the captain ordered Knight and another crewmember, Ladd, to change out the line. When the order was given, four-foot seas and winds of at least 20 miles an hour caused the SEA HAWK to roll. After Knight and Ladd removed the chafed line, they placed it on the deck next to them. As they were installing the new line, Knight stepped on the chafed line and injured his ankle. He testified that the rocking of the SEA HAWK caused him to lose his balance. Knight’s injury prevented his return to work in the same capacity.

At the trial, following a two-day bench trial, the Judge concluded: Kirby was negligent because “there were safer times to issue the order to change the line,” and that Knight was contributorily negligent because he failed to “watch his footing while replacing the chafed stern line” and failed to “move the chafed stern line to a location on the boat where he would not have stepped on it.” The court assigned equal fault to each party.

Knight appealed the judge’s decision that he was contributorily negligent since he was following an order at the time of his injury. The reason for bringing this decision to your attention is the analysis of the appeals court on the issue whether, as a matter of law, a seaman may be held contributorily negligent when he is complying with an order from his superior. 

In challenging the application of contributory negligence, Knight primarily relied on the decision of the Fifth Circuit in the case of Williams v. Brasea, Inc., 497 F.2d 67 (5th Cir. 1974). Knight relied heavily on dictum that was expressed by the court in the Williams case. For the reader, “dictum” is a remark, statement or observation of a judge that is not a necessary part of the legal reasoning needed to reach the decision in a case. Although dictum may be cited in a legal argument, it is not binding as legal precedent. In the Williams case, the dictum relied upon was that “a seaman may not be contributorily negligent for carrying out orders that result in his own injury, even if he recognizes possible danger.” Knight asserted this principle was reiterated and affirmed in an unpublished opinion of the Fifth Circuit in the decision in Ledet v. Smith Marine Towing Corp., 455 F. App’x 417 (5th Cir. 2011). Accordingly, Knight maintained that, as a matter of law, he could not be held negligent because he was following his captain’s order.

The above-described dictum in Williams undeniably modified the rule in Jones Act negligence claims that “contributory negligence is an affirmative defense that diminishes recovery in proportion to the seaman’s fault.” In looking to better understand the opinion in Williams, the Fifth Circuit looked to how other courts, by  comparison, applied Williams; i.e. they found it applied only to a supervisor’s specific orders, allowing contributory negligence when there was a general order; i.e. “when the employee is given a specific order—that is, where he or she is told to perform a specific task in a particular way—he is not contributorily negligent.” A specific order is one that must be accomplished using a specific manner and method, and leaving the seaman with no reasonable alternative to complete the assigned task.

The Fifth Circuit concluded the order given to Knight was a general order and, therefore, did not trigger the Williams’ dictum. In so holding, it upheld the finding of contributory or comparative fault on the part of Knight.

Click here to read the decision in its entirety.


If you have any questions regarding this maritime matter, please contact Bill Schwartz at (504) 569-2900 or wschwartz@bhbmlaw.com.


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