Misapplication of the Specific Orders Doctrine to the Benefit of Jones Act Plaintiffs

By Daniel D. Pipitone, Shareholder, Chamberlain Hrdlicka

You own a vessel.  Your captain advises the engineer that a winch may be slipping, with the implication that it be checked at some point and in accordance with vessel safety rules.  The engineer, unbeknownst to the captain and other members of the crew, proceeds immediately and without adhering to lock-out/tag-out procedures which require the disengagement of the engine powering the winch.  His long hair inadvertently gets caught in the cable being spooled onto the winch drum which causes a further and gruesome entanglement as the engineer is essentially spooled in along with the cable.  The engineer’s family commences litigation pursuant to provisions of the Jones Act seeking in excess of an eight (8)-figure judgment.  Your singular liability defense is based upon the fact that the engineer, a trained and supervisory individual, contributed to, if not solely caused his own death by failing to follow the very safety rules he assisted in creating and was charged with implementing.  After trial and with the jury assigning ninety percent (90%) fault to the engineer, the court refuses to reduce the verdict accordingly.  The lawyer for the family of the engineer convinces the misinformed and misguided court that the engineer was under “specific orders” at the time and, therefore, cannot be considered contributorily negligent. The unfortunate result is that you, the vessel owner, are denied the benefits of the Jury’s finding of contributory negligence and, as a result, are required to satisfy the entire, resultant judgment as opposed to one diminished in accordance with the apportionment of fault to the engineer.  Depending upon the amount of damages awarded by the jury and the percentage of fault apportioned to the engineer, the loss to you may be more than considerable. 

With increasing frequency and even regularity, courts are being asked to apply the “Specific Orders” Doctrine in precisely this incorrect way based upon an unfortunate case precedent (1) , which distorted and expanded the application of the Doctrine to the point when any crew member merely fulfilling his job requirements is relieved of the obligation to do so responsibly by utilizing safe alternatives.  A general order to merely pursue and accomplish usual job responsibilities, as outlined in the preceding example, or a call for assistance, are being sought by lawyers for plaintiffs to be deemed as a “specific order” and thus covered by the Doctrine.  A vessel owner and its lawyer, unfamiliar with the Doctrine and, more importantly, the attempts to misapply it, may directly suffer from their ignorance when a substantially more significant judgment is formed from a seemingly favorable jury verdict.  Moreover, the costly alternative of perfecting an appeal may likely not prove successful if your lawyer’s efforts to advise the court of the correct application of the Doctrine during the course of the trial and, particularly, when the court composes its instructions for the jury, are insufficient.  In other words, it is incumbent upon your lawyer to correctly advise the court of the correct application of the Doctrine and by providing properly phrased instructions, let the court’s error not be preserved.  Additionally and indirectly, a reasonable and amicable resolution prior to trial may be precluded as a consequence of the partys’ disparate evaluation of their respective positions borne from a misunderstanding of the meaning and application of the Doctrine.  Knowing and comprehending the true parameters of the Doctrine, and the methods utilized to perpetuate its misapplication, are crucial to safeguard the necessary defense of contributory negligence.  Accordingly, such knowledge must be injected in all phases of the litigation process, including the investigation and discovery phases, as well as when the court’s instructions are being formulated for and distributed to the jury.

The “Specific Orders” Doctrine was promulgated and has been maintained as a consequence of certain practical impressions regarding seamen and a desire to equitably determine entitlement with respect to claims brought by them.  The work of a seaman aboard a vessel might be considered inherently dangerous.  In the past, simply undertaking a voyage had dangers associated with it.  More recently, the dangers are likely associated with the equipment and appurtenances required to accomplish some of the tasks performed on a vessel, particularly with respect to off-shore drilling rigs and drill ships.  As a result, any general agreement to perform the usual duties of a seaman might be considered an assumption of a risk.  Inasmuch as the assumption of a risk by an individual normally abrogates recovery in the event of injury or death, the body of law governing seaman and vessel owners eliminated the assumption of a risk defense previously available. (2)  In other words, a vessel owner is barred from asserting an assumption of a risk defense in a personal injury or death case, lest the defense be utilized to effectively preclude a recovery by or on behalf of any seaman who could be deemed to have assumed all risks simply as a consequence of an acceptance of employment on a vessel. 

The past abrogation of the assumption of a risk defense in particularly a Jones Act litigation matter was not, however, intended to eliminate the availability to vessel owners of the contributory negligence defense.  Instead, an important distinction was created and acknowledged between what would be considered a general order, or an order which leaves a seaman choices or alternatives as to how best to perform a task, as opposed to a specific order, or an order to perform a task in a particular and precise manner or an order pertaining to a task which can be or is to be performed in only one manner.  The focus is, of course, upon the existence of choices or alternatives available to a seaman.  If choices or alternatives exist, a seaman must exercise reasonable care in selecting amongst them how best to proceed with respect to the completion of a particular task.  If reasonable care is not exercised, contributory negligence exists and must be considered when calculating damages from a jury verdict and, thereafter, formulating a judgment.  If no choices exist for a seaman required to perform a task, whether the absence of choices has occurred because the task may be performed in only one manner or because the task was assigned with instructions to perform it in a certain and precise manner, no opportunity exists for a seaman to exercise reasonable care.  Under these circumstances, a seaman cannot be considered to have been contributorily negligent inasmuch as no opportunity existed to exercise, or fail to exercise, reasonable care.

Knowledge of the distinction between these types of orders must be utilized during the investigation and discovery phases of all litigation matters.  Investigatory interviews with crew members undertaken immediately after an incident must focus upon the fact that the seaman involved in an incident was performing job duties in any manner selected by the seaman. In any injury matter, such investigatory interviews should necessarily include the injured seaman who, without the intrusion of counsel, may more honestly respond to inquiries or suggestions that choices or alternatives were available regarding the performance of the task involved.  A positive response at this time from a seaman shall likely preclude a credible change of testimony to the contrary during the course of a deposition and trial.  Notably, the existence of safer choices or alternative methods constitutes a critical inquiry not only when a seaman performs tasks associated with usual job responsibilities, but also when a seaman suffers an incident while responding to a request for assistance. 

Preparing all witnesses for presentation at deposition and trial must also be considered, with precise warnings provided that they be wary of efforts by opposing counsel to characterize things simply as “orders” and, particularly, “specific orders” when, in fact, they were merely general orders.  What the witness may otherwise have considered a matter of semantics or an unimportant general characterization has profound importance with respect to legal applications.  Finally, and most importantly, the following definition of “specific orders” must be submitted to the court when it forms its Charge to the jury, and it should be placed before any question presented to a jury concerning contributory negligence.  A “specific order” is given when a seaman is told to perform a specific task in a particular way, or, in other words, the seaman has no real choice as to how to perform that task.  If [the seaman] has reasonable alternatives available to him, he is not acting under specific orders and must act reasonably in performing his job duties.  In the event the court declines to include such a definition, as it may well do misguidedly premised upon the fact that it is not included in the Texas Pattern Jury Charge or other forms, error will have been preserved for appeal.  Any failure to heed these warnings may result in a disappointing conclusion to a litigation matter, as well as an unjust result.  

Daniel D. Pipitone, the chair of Chamberlain Hrdlicka's Admiralty Section, has more than 30 years of legal experience, beginning with a two-year Federal Judicial Clerkship in Philadelphia, PA, followed by the private practice of law in Corpus Christi and, later, in Houston.  Throughout his career, Mr. Pipitone's legal practice has focused primarily on Admiralty/Maritime Law and Litigation matters and he has successfully tried to a jury or to a court approximately 100 cases throughout Texas as well as in Georgia, Louisiana and Mississippi.  Additionally, Mr. Pipitone has prevailed in a number of cases that have significantly impacted existing law in the maritime, construction and labor/employment law industries.

 

(1) Tio Mario, Inc. v. Matos, 778 S.W. 2d 529 (Tex.App-Corpus Christi 1989, writ denied)  

(2) Sacony Vacuum Oil Co. v. Smith, 305 U.S. 424 (1939)  

 

*MarEx does not necessarily endorse any opinions herein.

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About the Author:

Daniel D. Pipitone, the chair of Chamberlain Hrdlicka's Admiralty Section, has more than 30 years of legal experience, beginning with a two-year Federal Judicial Clerkship in Philadelphia, PA, followed by the private practice of law in Corpus Christi and, later, in Houston.  Throughout his career, Mr. Pipitone's legal practice has focused primarily on Admiralty/Maritime Law and Litigation matters and he has successfully tried to a jury or to a court approximately 100 cases throughout Texas as well as in Georgia, Louisiana and Mississippi.  Additionally, Mr. Pipitone has prevailed in a number of cases that have significantly impacted existing law in the maritime, construction and labor/employment law industries.