ALL OVER THE MAP: THE CURRENT STATE OF THE PRIMARY DUTY RULE IN MARITIME LITIGATION.

• Author: Larriviere, Jacob

1. Introduction 17 II. The Origin of The Primary Duty Rule 18 A. Background on Comparative Negligence and Its Relation to the Federal Employer's Liability Act 18 B. The 1939 Amendment to the Federal Employer's Liability Act 20 C. The Second Circuit's Interpretation of the 1939 Amendment and the Birth of the Walker Doctrine 21 III. The Primary Duty Rule: Doctrinal Elements and Application 24 A. The Elements 24 B. Application of the Primary Duty Rule by the Second Circuit 24 C. Application and Expansion of the Primary Duty Rule by the Ninth Circuit 28 D. Application and Rejection of the Primary Duty Rule by the Fifth Circuit 33 E. The Eleventh Circuit's Hesitation to Apply the Primary Duty Rule 39 IV. Moving Forward: Plotting a Course For The Future of The Primary Duty Rule 43 V. Conclusion 44 I. Introduction

The inherently dangerous conditions of an occupation at sea has always provided seamen with a unique status in the law. (1) The Law of Admiralty's traditional policy has been to favor the injured seafarer due to the natural hardship of his circumstance, resulting in seamen often being referred to as "the wards of the admiralty" (2) In effect, this practice provides seamen with special remedies unavailable to other workers and leaves their employers fewer defenses in personal injury actions. (3)

One of these defenses available to an employer is the Primary Duty Rule--a defense to a seafarer's claims for Jones Act negligence and unseaworthiness. (4) Since the Primary Duty Rule's inception, it has undergone various changes, interpretations, and applications, Some appellate circuits have welcomed the doctrine and still apply it today. Others have rejected it outright. Then there are some who remain in the middle, undecided as to whether the rule is compatible with basic principles that have, over time, become ingrained in the law of Admiralty. So where does the Primary Duty Rule stand today?

Over the course of this comment, the birth and life of the Primary Duty Rule will be explored. Part II will provide a brief background of legislation that preceded the creation of the Primary Duty Rule, review three fundamental concepts of negligence law. and provide a summary of the case that laid the groundwork for the creation of the rule. In Part III, the elements of the Primary Duty Rule will be presented in full, as will the application methods of the appellate circuits. For the purposes of this comment, the jurisprudence of the four major Maritime Circuits will be reviewed: the Second. Ninth, Fifth, and Eleventh Circuits. Finally. Part IV will provide potential plans for the Primary Duty Rule's future.

2. The Origin of The Primary Duty Rule

   1. Background on Comparative Negligence and Its Relation to the Federal Employer's Liability Act

      Justice Brown, delivering the opinion of the Supreme Court, put forth four famous propositions in The Osceola, an admiralty case predicated on negligence grounds. (5) The fourth and final proposition read: "4. That the seaman is not allowed to recover an indemnity for the negligence of the master, or any member of the crew, but is entitled to maintenance and cure, whether the injuries were received by negligence or accident." (6) For nearly two decades, this proposition in effect barred seamen who were injured by the negligence of their master or fellow crew members from bringing claims in admiralty.

      The enactment of the Merchant Marine Act of 1920, or the "Jones Act." finally provided injured seamen the right to sue their employers for negligence. Through the Jones Act, Congress extended the provisions of the Federal Employer's Liability Act (FELA). a series of statutes enacted in 1908 designed to provide railroad workers with an outlet to obtain compensation for their injuries. (7) By way of the Jones Act, these provisions became applicable to seamen's claims for damages due to the employer's negligence.

      To properly understand the progression from the enactment of FELA to the creation of the Primary Duty Rule, it is crucial to review the underlying principles of negligence that serve as the foundation for the Primary Duty Rule. The first is one of the most common defenses in a negligence action: Contributory Negligence. (8) This defense will be applicable when the plaintiff's conduct both contributed as a legal cause to the harm he suffered, and fell below the standard to which he was required to conform for his own protection. (9) In effect, the plaintiff's Contributory Negligence serves as a complete bar to his chances of recovery for any common law negligence of the defendant. (10) This doctrine was based on the idea of "Why should one recover when he himself was at fault?" (11)

      Another common, albeit controversial, defense in a negligence action is Assumption of the Risk--"a defense that has been cordially disliked by friends of the plaintiff, because of its long history of barring recovery in cases of genuine hardship. (12) In order to establish an Assumption of the Risk defense, a few requirements must be satisfied. (13) First, the plaintiff must know the risk is present, and he must further understand its nature. (14) Second, the plaintiff's choice to incur the risk must be free and voluntary. (15) Assumption of the Risk, like Contributory Negligence, served as a complete bar under the common law to the plaintiffs opportunity for recovery; much to many legal scholars' chagrin, who note that recovery has often been denied when it should not. (16) Further, when the circumstances are such that the plaintiff's "negligence consists in making the wrong choice and voluntarily encountering a known unreasonable risk.'' the defenses of Contributory Negligence and Assumption of the Risk can possibly overlap, existing simultaneously and neither excluding the possibility of the other. (17)

      Finally, there is the doctrine of Comparative Negligence, a fault concept that exists in multiple forms. (18) This doctrine adopts a different approach of handling cases in which there is negligence on the part of both parties. (19) Instead of fixating on liability, Comparative Negligence focuses its attention on the division of damages between the two parties at fault. (20) The most widely endorsed method of application is that of "Pure Comparative Negligence," in which "a plaintiff's Contributory Negligence does not bar his recovery altogether, but does serve to reduce his damages in proportion to his fault." (21)

   2. The 1939 Amendment to the Federal Employer's Liability Act

      In enacting FELA, Congress replaced the rule of Contributory Negligence with the doctrine of Comparative Negligence. (22) Unfortunately, however, FELA perpetuated the defense of Assumption of the Risk, leading to an increase in its application by defendant. employers, (23) This doctrinal struggle led to a multitude of judicial decisions that attempted to distinguish the line between Contributory Negligence and Assumption of the Risk. (24)

      In response to the ongoing judicial speculation on the continued viability of Assumption of Risk and its relation to the abolishment of Contributory Negligence, Congress amended FELA in 1939. (25) The amendment's primary effect was for cases tried under FELA to be handled as though no Assumption of Risk doctrine had ever existed. there by releasing any potential employee claimant from the burden of Assumption of the Risk. (26)

   3. The Second Circuit's Interpretation of the 1939 Amendment and the Birth of the Walker Doctrine

      The 1939 Amendment to FELA seemingly resolved the gray area of recovery by abolishing the Assumption of the Risk doctrine, yet judicial interpretations following its enactment continued to lead to inequitable results. (27) Judge Learned Hand, writing for the Second Circuit, offered his analysis of the amendment in Walker v. Lykes Bros. S.S. Co. (28) Judge Hand's interpretation created what would become the "Walker Doctrine." more commonly known as the Primary Duty Rule.

      On November 14, 1946. in Staten Island, New York, plaintiff Walker took command of the defendant's vessel, and soon discovered defects in his office, (29) There were two steel filing cabinets in Walker's office, each containing four steel drawers, with each drawer having a catch designed to hold the drawer in place (30) According to Walker's testimony, six of the eight catches were defective and would not hold their drawers when the ship rolled. (31) This would occasionally result in a drawer rolling out onto the floor, (32) The cabinets remained in this condition until on March 11, 1947. when Walker was passing by the cabinets. The roll of the ship dislodged one of the drawers and propelled it into Walker's shin, causing severe injury to his leg. (33)

      Walker brought aa action under the Jones Act, charging that Lykes Bros, had been negligent in allowing Walker to he struck by the steel filing cabinet. (34) He asserted that other employees of Lykes Bros. were aware of the faulty catches and failed to mend them, (35) Lykes Bros, argued that because Walker was the master of the vessel, he had the duty to repair the catches, had ample chance to do so. and there were alternative ways to prevent the drawers from leaving the cabinet. (36)

      At trial, the judge instructed the jury to decide whether it was negligent for Lykes Bros, to allow the ship to leave the port with the filing cabinet catches in a defective condition. (37) If the jury found Lykes Bros, negligent, they were then to determine whether Walker had contributed to his injury through his own negligence. (38)

      Judge Hand, writing for the appellate court, explained the difference between a general duty to act with reasonable care and the duty that an officer "consciously assumed as a term of his employment. (39) The failure to perform the more general duty was described by Judge Hand as "a momentary inattention to one's own safety--the kind of thing of which we are all guilty every day." (40) Furthermore, this inattention would lead to a defense of...