Unseaworthiness is an unreasonably unsafe condition aboard a vessel. The essence of the seaworthiness doctrine is “that things about a ship, whether the hull, the decks, the machinery, the tools furnished, the stowage, or cargo containers, must be reasonably fit for the purpose for which they are to be used.” Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 213, 83 S.Ct. 1185, 1190, 10 L.Ed.2d 297 (1963). Under the seaworthiness doctrine the owner of the vessel, or the entity responsible for day-to-day operation and maintenance of the vessel, has a non-delegable duty to furnish a seaworthy vessel to the members of the crew. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971); Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549-50, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). Like Jones Act negligence, unseaworthiness can take many forms, including:
Any member of the crew of the vessel who has been injured by an unseaworthy condition can make a claim for unseaworthiness. United New York and New Jersey Sandy Hook Pilots Ass’n v. Halecki, 358 U.S. 613, 616, 79 S.Ct. 517, 519, 3 L.Ed.2d 541 (1959). Visitors and passengers on board the vessel may sue the vessel operator for failure to use reasonable care, but they are not entitled to claim unseaworthiness. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959)
The vessel’s owner or an entity which has taken over complete control and management of the vessel from the legal owner owes the duty of unseaworthiness. Reed v. S.S. Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963); Kerr-McGee Corp. v. Law, 479 F.2d 61 (4th Cir. 1973). A tugboat operator can become responsible for the unseaworthiness of a barge, when the operator takes over control of the barge, even temporarily. Eskine v. United Barge Co., 484 F.2d 1194 (5th Cir. 1973)
An injured seaman does not have to prove that the owner of the vessel was negligent in causing the unsafe condition. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 548-50, 80 S.Ct. 926, 932-33, 4 L.Ed.2d 941 (1960). This does not mean that unseaworthiness cases are a slam dunk for the plaintiff. If the condition which caused the injury was “within the usual and customary standards” that apply to the vessel, the vessel may be found to be seaworthy, Boudoin v. Lykes Bros. Steamship Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 (1955), although evidence of what is customary is not usually conclusive of what is seaworthy. Salem v. U.S. Lines, 370 U.S. 31, 37 n.6, 82 S.Ct. 1119, 1123 n.6, 8 L.Ed.2d 313 (1962) The seaman must prove that, at the time he was injured, whatever condition or conditions he alleges were unseaworthy, made the vessel unsafe for its intended purpose. The seaman must also prove that the unseaworthy condition was a direct and substantial cause of his injury. Gosnell v. Sea Land Service, Inc., 782 F.2d 464, 467 (4th Cir. 1986).
An injured seaman can recover the same compensation for unseaworthiness as he can for Jones Act negligence. That is, he can recover compensation for physical injuries, physical pain, mental anguish, inconvenience, disability, loss of income, and loss of earning capacity, both for losses suffered to date and losses that are likely to be suffered in the future. In addition, a seaman may claim unpaid past medical expenses and medical expenses likely to be incurred in the future. Bartholomew v. Universe Tankships, Inc., 279 F.2d 911, 916 (2d Cir. 1960).
The answer is “yes,” but your damages will be reduced by how much the court or jury finds you to be at fault in comparison to how much they find the defendant to be at fault. Pope & Talbot v. Hawn, 346 U.S. 406, 408-09, 74 S.Ct. 202, 204-05, 98 L.Ed. 143 (1953). For example, if the jury finds you to be 40% at fault and the defendant to be 60% at fault for the accident, you will be entitled to recover 60% of the damages which the jury awards you on your unseaworthiness claim. This method of apportioning fault is called “comparative fault” or “comparative negligence.” If a seaman is found to be entirely at fault for the accident, he cannot recover. Just because your employer may be placing all the blame for an accident on you, however, does not mean a jury will see it that way.