During the investigation of a case preparatory to trial, a violation of statute or federal regulation (CFR) may come to light. The effect of such a violation may have serious consequences on the liability.
In plaintiff cases, this violation must be discovered in sufficient time to have it identified to the defense. In two recent cases, because the issue of the violations was not in the pleading, the court on defendant’s motion, prohibited plaintiff from raising the issue at trial on the rational that defendant had not had adequate time to prepare a defense and the time for disclosing issues had passed. It is thus imperative that either the expert be retained early and given sufficient background information to identify violations, or that the attorney undertake this himself. The danger with the attorney assuming this duty entirely by himself is that he may not have the expertise.
Set for the below is the edited rational one plaintiff attorney used to describe the effect of a violation. The violation of a safety statute or a regulation has a three fold effect. First, under Federal Employees Liability Act (FELA) and the Jones Act, contributory fault by plaintiff may not be considered:
In any case where the violation by [the employer] of any statute enacted for the safety of employees contributed to the injury or death of such employee. 45 USC 53.
This principle specifically applies to Coast Guard regulations. Kernan v. American Dredging co., 335 US 426,78 S. Ct 394 (1958)
Thus, at bar if any of the alleged violations are found, along with the "slight" Jones Act causation, then even if the seaman was negligent, his fault will not reduce his recovery. This principle has been applied to Coast Guard regulations against bringing liquor on board vessels. Stankiewicz v United Fruit SS Corp., 229 F.2d 580 (2nd Cir 1956); Gerald v. United States Lines Co., 360 F.2d 343 (2nd Cir. 1966).
The second effect of a statutory violation is to reduce causation requirements, or to shift the burden of proof. The reduced causation approach, allowing an inference of causation on very thin facts can be seen in Wilkins v American Export Isbrandtsen Lines, Inc., 446 F.2d 480 (2nd Cir. 1971), where plaintiff had died from a heart attack after he was obligated to word more ours than were allowed by statute. In Brinegar v. Sinn Orr Construction Co., Inc., 302 F. Supp. 630 (E.D. ARK 1969) fault was primarily determined on the operator being under the statutory required age of 21 in a capsizing.
The other approach is to apply the Pennsylvania rule and shift the burden to the defendants to disprove causation, where it violated a safety statute. Reyes v Vantage SS Co., 609 F.2d 140 (5th Cir. 1980). In Re Seaboard Tipping Corp., 609 F.2d 140 (5th Cir. 1980) applied the Pennsylvania/Reyes doctrine in a non-rescue situation where two seamen riding aboard a barge under tow were lost overboard. The statutory fault was improper stowing of the barge’s life raft and overloading the barge. In rejecting a petition for limitation, the court held
We need go no further here than to say…that…the statutory violations alone [preclude] exoneration. Pennsylvania, 86 U.S. 125 (1873) makes it clear that the burden is on a ship in violation of a safety statute—in this case the barge—to show’not merely that her fault might not have been one of the cause or that it probably was not, but that it could not have been’. Wilkins is wrong it in its contention that admiralty applies this rule only to collision cases.
The Pennsylvania/Reyes rule has also been applied in a case of damage due to a Load Line Act violation. Petition of Long, 439 F.2d 109 (2nd Cir. 1971).
The third way in which the statutory violations establish fault is that violation of safety statutes or regulations almost always establish the foundation for determining that the vessel was unseaworthy. Benedict, 1B, Benedict on Admiralty, 7th Edition 1989 at 3-137, fn. 9 and associated text.
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