Most maritime cases are decided on the issues of negligence and /or unseaworthiness. Thus, it is extremely important that the attorneys and the experts understand these terms.
Negligence – There is a duty owed by a defendant to a plaintiff when an injury is foreseeable. The standard is "reasonable care under the circumstances in each case" 358 U.S. 625,632,79 S. Ct 406,410 (1959). There must be a breach of the duty owed, injury to the plaintiff, and a causal connection between the defendant’s conduct and the injury to the plaintiff. Black’s Law Dictionary defines negligence:
The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.
Unseaworthiness is the failure of the vessel’s owner or operator to provide a vessel that is fit for its intended purpose for the voyage, McAllister v Magnolia Petroleum Co 357 U.S. 221, 78 S.CT 1201, 2 L.Ed.2d 1272 (1958). Seaworthiness is a warranty of fitness for duty, Martinez v Sealand Services, Inc, 763 F.2d 26, 27, 1986 AMC 851 (1st Cir. 1985), on remand 637 F. Supp. 503 (D.Puerto Rico 1986). Considerations are the proper manning of a vessel through the number, qualification or training of a crew, and fitness of the vessel and her equipment. The fact that an owner or operator used due care is no defense. It is also no defense that the owner had no notice or opportunity to correct the defect, Mitchell v. Trawler Racer, Inc. 362 U.S. 539, 80 S.Ct. 926, 4L.Ed 941 (1960). The warrantee of seaworthiness extends to the hull of the ship, the ship’s cargo handling equipment, the tools carried aboard, the rope and tackle, and all types of equipment aboard. Even a latent defect may cause a vessel to be unseaworthy.
Expert witnesses in maritime cases are sometimes asked whether a vessel was seaworthy and whether the actions of her crew or the owners were negligent. While this type of question is sometimes permitted, most frequently it is objected to as calling for a legal conclusion. Although the rules of evidence permit an expert to testify as to the ultimate issues, an expert may not testify as to matters of law since that invades the province of the court.
Sometimes the objection may be, "Are you asking the witness to testify as to his general understanding, or whether it meets the legal standard". A better way to approach the subject to ask specific questions which form the basis of the definition of unseaworthiness of negligence.
In order to be able to answer questions and provide sound opinions, the expert must have been furnished the facts. Giving him a deposition 30 minutes before he is expected to be deposed himself will usually not be satisfactory. The attorney has the duty to timely provide the expert with the necessary facts. Normally this is accomplished by visiting the scene of the accidents, examining materials and photographs, and reading depositions or hearing testimony. If the expert does not have the necessary facts, he cannot give effective testimony since his opinion will be subjected to cross examination and may fall apart. In a word, "preparation" is extremely important. The attorney who inadequately prepares his expert has failed in his duty to his client. The effort is a team effort and each person must perform his or her part.
Before an expert gives testimony in either a deposition or at a trial, he and the attorney who employed him should discuss these ultimate issues. The expert should be able to truthfully and within his area of expertise, support the side which retained him, or the attorney who retained him should not present his testimony.
A typical question asked an expert is, "When did you form your opinion?" A follow-up question is, " Are you indicating that you were retained without knowing the facts or whether you could support the side which retained you?" The answer is usually an unequivocal, "yes". On some cases in which an expert is retained, he or she may find that they cannot support the cue after the have examined the facts. While the attorney for whom they are working doesn’t like to hear this, he should be grateful that he learns of it before he undergoes the expense of a trial. If a plaintiff attorney, he may be able to get a settlement which is better than nothing at all after undergoing an expensive trial. If a defendant attorney, he may be able to arrive at a reasonable settlement without taking he chance of having to pay a much higher award.
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