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How Heavy is a Feather ? The US Supreme Court and Causation in Jones Act Seaman Cases.

Martin_Turner

Martin Turner

Published: August 01, 2011

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A recent case ruled upon by the U.S. Supreme Court in respect of the Federal Employer’s Liability Act ( FELA ) has direct relevance to Jones Act seaman cases  because the Jones Act provides that such personal injury lawsuits are to be considered under the auspices of the FELA statute and its standards as they are applied to railroad workers.

The issue is that FELA has long been interpreted as applying a “featherweight” burden of causation such that  “…. if defendant’s negligence played a part, no matter how small, in bringing about the injury …” he will be considered to have caused or contributed to the plaintiff’s injury and, thus, have a financial liability to pay damages. The case of CSX Transportation v  McBride  sought to challenge that interpretation and move the standard to one more in line with conventional tort claims, such that any negligence of the defendant would have to be  shown to be the “proximate cause” of the injury.

The U.S. Supreme Court decided, if only on a 5 to 4 majority, not to alter the existing interpretation of FELA and thus the “featherweight” standard of causation still stands.

This standard makes the defence of Jones Act seaman cases in the USA very challenging. Any finding of negligence on the part of the employer which can be linked to the injury, even if not a significant, or effective, causative factor, can be expected to give rise to a trial award adverse to the shipowner employer as the instructions to the jury will continue to use the “…no matter how small…” language.

The finding of liability does require an assessment of negligence of the part of the shipowner employer and the standard for deciding that is consistent with any finding of negligence. However, it is the connectivity of such an act of negligence to the injury to which the “featherweight burden of causation” applies.

In his dissenting opinion the Chief Justice seeks to provide an example : A piano is negligently dropped and damages a pavement, some weeks later the pavement is being repaired and a cyclist hits a warning cone placed around the repair and falls from his bike injuring himself. Under the present interpretation of the FELA/Jones Act standard of a “featherweight burden of causation ”the cyclist would be expected to prevail in a liability claim against the party that dropped the piano. The Chief Justice surmised that this amounted to a “but for” test that knows no bounds and would not be acceptable in any other common law tort claim. The Supreme Court decision gave no comfort that the “forseeability of harm”, or lack of it, would provide a defence as the Court’s opinion suggested   “… the carrier is answerable in damages even if the extent of the injury or the manner in which it occurred was not probable or foreseeable.”. Thus, whilst “foreseeability of harm” needs to be established, the specifics of the plaintiff’s injuries and how they came about, are considered to be irrelevant.

The dissenting opinion makes the strong argument that the original “…no matter how small….” language of FELA needs to be read in context. This suggests that it was intended to overrule what was, at that time, the prevailing system of contributory negligence which barred an employee from any recovery against their employer if they were in any way at fault for their accident. The FELA wording tried to amend that to the principle of contributory negligence as applied in the present day where an employee’s negligence serves only to comparatively reduce the financial liability of his negligent  employer. The FELA “…in any part… ” wording was intended to ensure a negligent employer was not absolved from that liability simply because the employee had also been negligent. The majority of the Supreme Court Justices did not agree.

The decision will not make the defence of US Jones Act seaman claims any more difficult than it has been in the past. It is though unfortunate that at 5 to 4 the decision was so close, and with the Chief Justice leading the dissent it perhaps holds out the hope that the US Supreme Court may be more willing than would normally be the case to re-visit the issue in the future.

Article by Martin Turner 

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