REVISED
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
Nos. 95-30250 & 95-30272
CHARLES D. GAUTREAUX
Plaintiff-Appellee
VERSUS
SCURLOCK MARINE, INC.
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
February 28, 1997
Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM,
DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA,
DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.
DUHÉ, Circuit Judge:
Defendant-Appellant Scurlock Marine, Inc. moves this En Banc
Court to consider whether seamen, in Jones Act negligence cases,
are bound to a standard of ordinary prudence in the exercise of
care for their own safety, or whether they are bound to a lesser
duty of slight care. On appeal to a panel of this Court, Scurlock
Marine had assigned as error, inter alia, the district court’s
instructions to the jury charging that seamen were bound only to a
duty of slight care for their own safety. The panel denied
Scurlock Marine relief on this point because the jury instructions
were consistent with what the panel considered was the settled law
of this Circuit. Gautreaux v. Scurlock Marine, Inc., 84 F.3d 776,
780-81 (5th Cir. 1996). A review of our Jones Act case law
reveals, however, that this “settled law” obtains from doubtful
parentage. We thus now overrule cases contrary to the principles
embraced in this opinion and AFFIRM in part, VACATE in part and
REMAND for further proceedings as to comparative fault consistent
with our decision today.
BACKGROUND1
Archie Scurlock, as President and owner of Scurlock Marine,
Inc., (“Scurlock Marine”) purchased the M/V BROOKE LYNN in May,
1993, and retained Lance Orgeron as her first and permanent
captain. Scurlock hired Charles Gautreaux as the BROOKE LYNN’s
relief captain in October, 1993. Gautreaux was qualified for the
position, having worked as a tanker man since the early 1980s and
having recently earned a United States Coast Guard master’s
license.
The BROOKE LYNN is a standard inland push boat, equipped with
two towing winches on her bow, which are used to secure lines
joining the BROOKE LYNN to the barges in her tow. The starboard
side winch is hydraulic, and the port side winch is electric. Upon
being hired, Gautreaux was taken to the BROOKE LYNN and instructed
1
This factual summary is taken almost verbatim from our panel
opinion in this case. Gautreaux v. Scurlock Marine, Inc., 84 F.3d
776, 778-79 (5th Cir. 1996).
2
on her operation by Archie Scurlock. Orgeron took Gautreaux on a
tour of the vessel, showing him her layout and familiarizing him
with her equipment. Orgeron showed Gautreaux the manual crank
handle that accompanied the port side electric winch and told him
that it was to be used to override the electric switches on the
winch if they failed. Orgeron explained that, if the winch became
“bound up” and failed to engage by use of the electric ignition
switch, the manual crank should be attached to the winch motor and
turned a few times to “unbind” the winch, and then the electric
ignition switch should be used to try to engage the winch. Neither
Scurlock nor Orgeron told Gautreaux that if he needed to use the
manual crank handle to unbind the winch, he should not leave it on
the winch motor when attempting to engage the winch by use of the
electric ignition switch.
About four months after he was hired, Gautreaux, serving as
captain of the BROOKE LYNN, relieved the tanker man on duty and
began off loading of the barge in tow. As the barge discharged its
cargo, it began to rise in the water, eventually causing the towing
wires to become taut. Noticing this, Gautreaux attempted to
relieve the tension in the wires by unwinding them from the
winches. He released the starboard wire first, which caused that
side of the BROOKE LYNN to drop and the port side towing wire to
become even tighter. Gautreaux then attempted to release the port
side wire, but the electric winch would not work. He attached the
manual crank to the winch motor, and began turning the crank while
simultaneously pressing the electric ignition switch. When the
3
motor started, the manual crank handle flew off and struck
Gautreaux on the right side of his face, crushing his right eye and
inflicting other severe injuries.
Gautreaux sued Scurlock Marine, alleging that his injuries
were caused by its negligence and the unseaworthiness of the BROOKE
LYNN. Gautreaux’s primary complaint was that Scurlock Marine
failed to properly train him in the use and operation of the
electric towing winch and its manual crank handle, thereby not
providing him a safe place to work. Scurlock Marine answered and
sought exoneration from or limitation of its liability. After a
two-day trial, the jury returned a verdict in favor of Gautreaux on
his Jones Act negligence claim, but found the BROOKE LYNN
seaworthy. The jury apportioned fault 95% to Scurlock Marine and
5% to Gautreaux and awarded a total of $854,000 in damages.2
The district court entered judgment for Gautreaux for
$811,300. By separate order, the district court denied Scurlock
Marine’s petition for limitation of liability. Scurlock Marine
moved in the alternative for judgment as a matter of law, for new
trial, or to alter, amend, or remit the judgment. The district
court denied these motions, conditioning its denial of Scurlock
Marine’s motion for new trial on Gautreaux’s acceptance of a
2
The jury’s award was:
Past and future pain and suffering
and disability $300,000
Past lost wages 24,000
Future lost wages 500,000
Future medical expenses 30,000
Total $854,000
4
remittitur.3 Gautreaux accepted the remittitur, and the district
court entered an amended judgment for $736,925 for Gautreaux.4
On appeal to this Court, Scurlock Marine argued, inter alia,
that in its instructions regarding contributory negligence, the
district court erred by charging the jury that a Jones Act seaman
need exercise only “slight care” for his own safety. Scurlock
Marine maintained that the standard to which Gautreaux, and all
seamen, should be held is that of a reasonably prudent person
exercising ordinary or due care under like circumstances.
Accordingly, Scurlock Marine urged this Court to abandon the slight
care standard in Jones Act cases, contending the standard “has
evolved from this Court’s blind adherence to an incorrect statement
of the law.” Gautreaux, 84 F.3d at 781 n.7. The panel
acknowledged that the viability of the slight care standard has
recently been questioned but considered it the settled law of this
Circuit. It thus refused to hold that the district court erred in
giving the “slight care” instruction, noting that “settled law of
this Circuit, such as the slight care standard in a Jones Act case,
can only be changed, absent action by the United States Supreme
3
The district court found the jury’s award of $500,000 for
lost future wages excessive and against the great weight of the
evidence, insofar as the award was premised on Gautreaux’s
inability to return to minimum-wage employment during the first two
years after the accident. Accordingly, the district court
conditioned denial of Scurlock Marine’s new trial motion on this
element of damages on Gautreaux’s acceptance of an award of
$400,625.
4
On June 7, 1995, the district court further amended its
judgment, discovering that it had failed to reduce the remitted
amount of lost future wages by Gautreaux’s percentage of fault.
5
Court, by this Court sitting en banc.” Id. The panel accordingly
affirmed the district court’s judgment and this en banc rehearing
followed.
STANDARD OF REVIEW
While trial courts are accorded substantial latitude in
formulating jury instructions, “we must reverse when we have a
substantial doubt that the jury has been fairly guided in its
deliberations.” Bode v. Pan American World Airways, Inc., 786 F.2d
669, 672 (5th Cir. 1986) (internal quotations and citation
omitted); see also Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216
(5th Cir. 1995).
DISCUSSION
The district court’s instruction, consistent with the Fifth
Circuit’s Pattern Jury Instructions,5 informed the jurors that
“[i]n determining whether the plaintiff was contributorily
negligent, you must bear in mind that a Jones Act seaman does not
have a duty to use ordinary care under the circumstances for his
own safety. A Jones Act seaman is obliged to exercise only slight
care under the circumstances for his own safety at the time of the
accident.” Scurlock Marine asserts that this charge is defective,
maintaining that historically, Jones Act seamen had been expressly
bound to a standard of ordinary prudence under like circumstances.
In support of its contention, Scurlock Marine cites early Supreme
5
The drafters, not surprisingly, apparently relied upon our
explicit statement in Brooks v. Great Lakes Dredge-Dock Co., 754
F.2d 536 (5th Cir. 1984), modified on other grounds, 754 F.2d 539
(5th Cir. 1985), to draft this charge.
6
Court opinions to illustrate that the phrase “slight negligence” or
“slight care” stood not for the duty of care owed by employers and
employees, as the phrase is now understood, but for that quantum of
evidence necessary to sustain a jury verdict on review. The duty
of care owed by both parties, Scurlock Marine contends, had always
been, and should remain, that of the reasonable person.
We acknowledge there is much confusion in this Circuit as to
the proper standard of care by which juries should measure a
plaintiff’s duty under the Jones Act to protect himself. While
some courts have instructed juries that a plaintiff’s duty is only
one of slight care, as did the district court in the instant case,
others charge that the duty is one of ordinary prudence.
Admittedly, this Court has been less than clear in its articulation
of the proper standard of care to which seamen are bound. We
granted this en banc rehearing to eliminate the uncertainty and to
consider returning, as Scurlock Marine requests, to the reasonable
person standard.
A. The Development of the Slight Care, or Slight Negligence,
Standard
The language chosen by Congress to determine the
responsibility of both employers and employees under the Jones Act
is simple and direct. Nothing in the statute indicates that
Congress intended to hold Jones Act employees to a standard of
slight duty of care in the exercise of concern for their own
safety. Below, we explain the statutory scheme and Supreme Court
precedent interpreting it before we illustrate our departure from
their clear mandates.
7
1. The Statutory Scheme and Supreme Court Precedent
Under the Jones Act, seamen are afforded rights parallel to
those of railway employees under the Federal Employers’ Liability
Act (“FELA”). 46 U.S.C. § 688. Section 51 of the FELA provides,
in pertinent part, that “[e]very common carrier by railroad . . .
shall be liable in damages . . . for such injury or death resulting
in whole or in part from the negligence of any of the officers,
agents, or employees of such carrier.” 45 U.S.C. § 51 (emphasis
added). A seaman is entitled to recovery under the Jones Act,
therefore, if his employer’s negligence is the cause, in whole or
in part, of his injury. In their earlier articulations of § 51
liability, courts had replaced the phrase “in whole or in part”
with the adjective “slightest.” In Rogers v. Missouri Pacific R.
Co., 352 U.S. 500, 506 (1957), the Supreme Court used the term
“slightest” to describe the reduced standard of causation between
the employer’s negligence and the employee’s injury in FELA § 51
cases. In Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521,
523 (1957), the Court applied the same standard to a Jones Act
case, writing, “‘Under this statute the test of a jury case is
simply whether the proofs justify with reason the conclusion that
employer negligence played any part, even the slightest, in
producing the injury or death for which damages are sought.’”
(quoting Rogers, 352 U.S. at 506).
Nothing in these cases, then, supports the proposition that
the duty of care owed is slight. Rather, the phrase “in whole or
in part” as set forth in the statute, or, as it has come to be
8
known, “slightest,” modifies only the causation prong of the
inquiry. The phrase does not also modify the word “negligence.”
The duty of care owed, therefore, under normal rules of statutory
construction, retains the usual and familiar definition of ordinary
prudence. See Texas Food Indus. Assoc. v. United States Dept. of
Agriculture, 81 F.3d 578, 582 (5th Cir. 1996) (stating it is a
“cardinal canon of statutory construction . . . that [in
interpreting a statute,] the words of a statute will be given their
plain meaning”).
Despite the clarity of the Supreme Court’s decisions, the word
“slightest,” used initially to refer to the quantum of evidence of
an employer’s breach of duty necessary to sustain a jury verdict,
soon took on a different referent. Once the Supreme Court had
reduced the statutory language “in whole or in part” to “any part,
even the slightest,” it was not long before our court further
reduced the phrase “any part, even the slightest” to a shorthand
expression of “slight negligence” or “slight evidence of
negligence.” Thereafter we used the phrase “slight negligence”
uncritically. Justice Frankfurter’s comment on the (mis)use of the
phrase “assumption of the risk” in FELA actions aptly applies to
our discussion today: “A phrase begins life as a literary
expression; its felicity leads to its lazy repetition; and
repetition soon establishes it as a legal formula,
undiscriminatingly used to express different and sometimes
contradictory ideas.” Tiller v. Atlantic Coast Line R. Co., 318
U.S. 54, 68 (1943) (Frankfurter, J., concurring). The same holds
9
true of our use of the phrase “slight negligence” or “slight care”
in Jones Act negligence cases.
Guided by the Supreme Court, we had initially employed the
phrase “slight negligence” as a shorthand expression for the
standard by which we measure, in our review of a jury verdict, the
sufficiency of evidence establishing a causal link between an
employer’s negligence and a seaman’s injury. Significantly, an
employer’s duty of care always remained that of ordinary
negligence. Soon, however, we began using the phrase “slight
negligence” to refer not only to the sufficiency of the evidence
inquiry but also to that duty of care Jones Act employers owed to
their employees. A plaintiff, therefore, could now reach the jury
not only with “slight evidence” of his employer’s negligence, but
also with slight evidence of his employer having been only
“slightly negligent.” Once we had characterized the phrase “slight
negligence” as shorthand to depict a duty of care owed by an
employer to its employee, it was not long before we also used the
phrase to represent the plaintiff’s duty of care to protect himself
from work-related injuries. We did so by rephrasing “slight
negligence” to “slight care.”
Historically, then, Jones Act employers and seamen were
expressly bound to a standard of ordinary prudence; when the phrase
“slight negligence” came to stand for the duty of care owed by
employers and employees, however, employers were understood to be
held to a higher degree of personal responsibility as to their
employees, and plaintiff-seamen were understood to be held to a
10
lower degree of personal responsibility for themselves. We hold
that the historical interpretation always should have been, and
should now be, applied in this Circuit. We offer the following
survey of our case law, however, to illustrate just how we devolved
from the Supreme Court’s pronouncements in Rogers and Ferguson to
our “settled law” today.
2. Our Departure from the Standard of Reasonable Care
In Page v. St. Louis Southwestern Railway Co., 349 F.2d 820,
823 (5th Cir. 1965), we kept the standards for determining duty of
care and causation distinct when we clarified that in FELA cases,
the traditional standard for determining negligence applied:
As to both attack or defense, there are two common
elements, (1) negligence, i. e., the standard of
care, and (2) causation, i. e., the relation of the
negligence to the injury. So far as negligence is
concerned, that standard is the same--ordinary
prudence--for both Employee and Railroad alike.
In Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc),
however, the standards became more nebulous. We misinterpreted
Rogers’s “any part, even the slightest” language to refer not to
the evidence necessary to support a jury verdict, but to an
employer’s duty of care. We concluded that “[s]light negligence,
necessary to support an [sic] FELA action, is defined as ‘a failure
to exercise great care,’ and that burden of proof, obviously, is
much less than the burden required to sustain recovery in ordinary
negligence actions.” Id. at 371. Thus, in Boeing, we broadened
the scope of a FELA--and by implication Jones Act--action insofar
as we exposed employers to a higher degree of care and thus more
liability than they otherwise would be exposed to in ordinary
11
negligence actions.
In the following years, we vacillated considerably in our
pronunciations of the proper standard of care. In Perry v. Morgan
Guaranty Trust Co. of New York, 528 F.2d 1378 (5th Cir. 1976), we
did not follow Boeing’s articulation of an employer’s duty,
applying instead the traditional standard of that of a reasonable
person. In Perry, the defendant appealed the district court’s
judgment for the plaintiff, maintaining that the court’s finding of
Jones Act liability was unsupported by the evidence. We
acknowledged that the amount of evidence required to support a jury
verdict was slight, and held that an employer was guided by a duty
of reasonable care. Perry, a case involving solely the issue of
sufficiency of the evidence, was therefore properly decided under
the Supreme Court’s decisions in Rogers and Ferguson. In Davis v.
Hill Engineering, Inc., 549 F.2d 314 (5th Cir. 1977), overruled on
other grounds, 688 F.2d 280 (5th Cir. 1982), however, we regressed.
Although we held that a finding of Jones Act liability could be
sustained upon evidence of only “the slightest negligence,” in the
very next sentence, we affirmed the district court’s use of the
reasonable person standard in determining Jones Act liability. Id.
at 329. Interestingly, we cited Sanford Bros. Boats, Inc. v.
Vidrine, 412 F.2d 958 (5th Cir. 1969) and Perry to support our
holding that evidence of only the slightest negligence would
suffice. Id. As noted, however, Perry, dealt solely with the
issue of causation and did not adopt Boeing’s “slight negligence”
standard. Moreover, Sanford Bros., which has often been cited
12
erroneously as the progenitor of our “slight negligence” standard,
neither applied the “slight negligence” standard of care nor
mentioned it in the course of its opinion, as the case concerned
only the causation prong of the inquiry. That we mis-cited these
cases, which both dealt solely with whether the evidence of the
employer’s negligence supported the jury verdict of Jones Act
liability, demonstrates our early predilection to confuse the
standard for sufficiency of the evidence and the standard of care
a Jones Act employer owes to his employees.
Later, in Ivy v. Security Barge Lines, Inc., 585 F.2d 732, 741
(5th Cir. 1978), modified on other grounds, 606 F.2d 524 (5th Cir.
1979) (en banc), cert. denied, 446 U.S. 956 (1980), we reverted
back to our statement in Perry and held that a Jones Act employer
is negligent “only if he fails to use reasonable care to maintain
a reasonably safe place to work.” We appear to have switched
courses again, however, in Allen v. Seacoast Products, Inc., 623
F.2d 355, 361 (5th Cir. 1980), in which we held that “[t]he
remedial nature of the Jones Act and its imposition of a higher
standard of care on employers results in liability upon the showing
of only ‘slight negligence.’” (citing Davis v. Hill Engineering,
Inc., 549 F.2d 314, 329 (5th Cir. 1977)). Thereafter, we
backtracked from this position to other prior one when we
explicitly stated that “the same general negligence (‘ordinary
prudence’) and causation standards apply to both employer and
employee in Federal Employers’ Liability Act (and, by extension,
Jones Act) cases.” Gavagan v. United States, 955 F.2d 1016, 1019
13
n.7 (5th Cir. 1992).
Our decisions imputing to Jones Act employers a higher duty of
care than that imposed on all other employers stretch the Supreme
Court’s decisions in Rogers and Ferguson quite far. Our decisions
discussing an employee’s duty of care stretch farther. In Spinks
v. Chevron Oil Co., 507 F.2d 216 (5th Cir. 1975), clarified on
other grounds, 546 F.2d 675 (5th Cir. 1977), we not only reaffirmed
the high standard of care to which we had bound Jones Act
employers, but we also announced that a seaman-employee owes only
a slight duty to protect himself. We stated, “The duty owed by an
employer to a seaman is so broad that it encompasses the duty to
provide a safe place to work. By comparison, the seaman’s duty to
protect himself . . . is slight.” Id. at 223 (internal citations
omitted).
Spinks, however, was not the definitive word on the issue.
Just as we had done for the standard of care to be applied to
maritime employers, we vacillated--often in the same opinion--as to
the duty a seaman owed to look after his own safety, describing
this duty as one of both reasonableness and slight care. For
example, in Bobb v. Modern Products, Inc., 648 F.2d 1051, 1057 (5th
Cir. 1981), we held that “the seaman has some duty to use
reasonable care, even though that duty is slight.” Similarly, in
Ceja v. Mike Hooks, Inc., 690 F.2d 1191, 1193 (5th Cir. 1982), we
wrote:
In contrast to the broad duty imposed upon a vessel
owner to supply a safe work place, the seaman’s duty
to protect himself is slight. Although the seaman
has a duty to use reasonable care, this duty is
14
tempered by the realities of maritime employment
‘which have been deemed . . . to place large
responsibility for his safety on the owner.’
(citations omitted). One year later, in Thezan v. Maritime
Overseas Corp., 708 F.2d 175 (5th Cir. 1983), cert. denied, 464
U.S. 1050 (1984), we relied on Bobb to define a seaman’s duty of
care, but neglected to include Bobb’s element of “reasonableness”
in our definition. We held that “[w]hile the seaman’s duty to
protect himself is slight, the duty does exist.” Id. at 180.
Within the same paragraph, however, we did point out that although
a seaman generally owes no duty to find the safest way to perform
his work, “where it is shown that there existed a safe alternative
available of which he knew or should have known, a seaman’s course
of action can be properly considered in determining whether he was
negligent.” Id. at 181 (emphasis added). Our design in Thezan may
have been to continue holding seamen to a standard of ordinary
prudence, but we failed to clearly articulate that intention. See
also Shipman v. Central Gulf Lines, Inc., 709 F.2d 383, 386 (5th
Cir. 1983) (perpetuating the ambiguity).
We were quite explicit, however, in Brooks v. Great Lakes
Dredge-Dock Co., 754 F.2d 536 (5th Cir. 1984), modified on other
grounds, 754 F.2d 539 (5th Cir. 1985), when we expressly rejected
any definition of a seaman’s duty of care that sounded in ordinary
prudence. We held that the district court erred by instructing the
jury that the injured party had a duty of ordinary care for his own
safety and emphasized, somewhat erroneously, that “[t]his court
. . . has consistently held that under the Jones Act, a seaman’s
15
duty to protect himself is not ordinary care, but slight care.”
Id. at 538. Brooks’s explicit proclamation did not last. Our
clear waters were made murky in Pickle v. International Oilfield
Divers, Inc., 791 F.2d 1237, 1240 (5th Cir. 1986), cert. denied,
479 U.S. 1059 (1987), when we reinserted the element of
“reasonableness” in our definition of the standard to which seamen
are bound and held that the plaintiff’s “duty to protect himself is
only a slight duty to use reasonable care.” Again, we raise
Gavagan to illustrate that, in 1992, we came full circle from where
we began in Page when we stated in rather explicit terms that the
standards of reasonable care guide the duties of both employers and
employees under the Jones Act. Gavagan, 955 F.2d at 1019 n.7.
B. Ordinary Prudence
The above survey of our decisions shows the confused start and
the diverted path leading to the “settled law” in this Circuit that
a Jones Act employer is bound by a greater-than-ordinary standard
of care towards its employees and that a seaman owes only a slight
duty to look after his own safety. We agree with the Third Circuit
that nothing in the text or structure of the FELA-Jones Act
legislation suggests that the standard of care to be attributed to
either an employer or an employee is anything different than
ordinary prudence under the circumstances. Fashauer v. New Jersey
Transit Rail Operations, Inc., 57 F.3d 1269, 1283 (3d Cir. 1995).
In addressing a seaman’s duty to act with reasonable care, the
Third Circuit reasoned:
By its very terms, the FELA provides that ‘the
damages shall be diminished by the jury in
16
proportion to the amount of negligence attributable
to such employee.’ 45 U.S.C. § 53. The statute
does not distinguish between degrees of negligence;
the statute does not say that the plaintiff only has
a slight duty of care. Under the statute, a
plaintiff’s recovery is reduced to the extent that
he is negligent and that such negligence is
responsible for the injury. In such a situation,
one must assume that Congress intended its words to
mean what they ordinarily are taken to mean--a
person is negligent if he or she fails to act as an
ordinarily prudent person would act in similar
circumstances. Such a reading also is in accord
with the FELA’s pure comparative negligence scheme;
and to adopt [plaintiff’s] argument would be to
abandon the clear dictate of the statute in favor of
a policy decision to favor employees over employers.
Id.; see also Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67
(1943) (holding that “the employer’s liability is to be determined
under the general rule which defines negligence as the lack of due
care under the circumstances; or the failure to do what a
reasonable and prudent man would ordinarily have done under the
circumstances of the situation”). Our sister circuits have
similarly held. See, e.g., Smith v. Tow Boat Serv. & Management,
Inc., 66 F.3d 336 (9th Cir. 1995) (unpublished) (rejecting “slight
care” standard); see also Karvelis v. Constellation Lines, S.A.,
806 F.2d 49, 52-53 & n.2 (2d Cir. 1986), cert. denied, 481 U.S.
1015 (1987), (approving jury instruction informing that both
employer and employee under Jones Act are charged with duty of
reasonable care under the circumstances); Ybarra v. Burlington N.,
Inc., 689 F.2d 147, 150 (8th Cir. 1982) (approving jury instruction
that railroad has duty to exercise reasonable care for protection
of employees); Joyce v. Atlantic Richfield Co., 651 F.2d 676, 681
(10th Cir. 1981) (defining negligence as failure to use reasonable
17
care).
We find further support for our position in Supreme Court
precedent. In Urie v. Thompson, 337 U.S. 163, 174 (1949), the
Court emphasized that the term “negligence” is to be defined “by
the common law principles as established and applied in the federal
courts.” (internal quotations and citation omitted). Although the
Court’s discussion refers specifically to § 51 “negligence,” it
would defy logic not to extend this reasoning to the term as used
in § 53, which discusses a plaintiff’s contributory negligence.
See also Consolidated Rail Corp. v. Gottshall, 114 S.Ct. 2396, 2404
(1994) (holding that common law principles are entitled to great
weight in FELA analysis unless expressly rejected in text of
statute).
A seaman, then, is obligated under the Jones Act to act with
ordinary prudence under the circumstances. The circumstances of a
seaman’s employment include not only his reliance on his employer
to provide a safe work environment but also his own experience,
training, or education. The reasonable person standard, therefore,
and a Jones Act negligence action becomes one of the reasonable
seaman in like circumstances. To hold otherwise would unjustly
reward unreasonable conduct and would fault seamen only for their
gross negligence, which was not the contemplation of Congress. See
Robert Force, Allocation of Risk and Standard of Care Under the
Jones Act: “Slight Negligence,” “Slight Care”?, 25 J. Mar. L. &
Com. 1, 31 (1994).
By ascribing to seamen a slight duty of care to protect
18
themselves from the negligence of their employers, Spinks and its
progeny, specifically Brooks, are repugnant to the principles we
espouse today and are therefore overruled. Moreover, by
attributing to Jones Act employers a higher duty of care than that
required under ordinary negligence, Allen and its progeny repudiate
the reasonable person standard and are also overruled.
CONCLUSION
In light of the foregoing discussion about the appropriate
standards of care that should guide employers and employees under
the Jones Act, we hold that the jurors in the instant case were
improperly instructed as to Gautreaux’s duty to exercise care for
his own safety. We, however, express no opinion as to the proper
apportionment of fault between the two parties. We accordingly
AFFIRM the district court’s determination of the amount of damages,
VACATE the district court’s judgment as to comparative fault and
REMAND for proceedings to determine the comparative fault (if any)
of the plaintiff and apportionment of the damages consistent with
this opinion. In all other respects, we reinstate the panel’s
opinion.
AFFIRMED IN PART, VACATED IN PART, and REMANDED.
19