Background:
Plaintiff, Justin Endicott, had a fish cart crush his arm while he was working in the freezer on one of his employer's, defendant Icicle Seafoods, ships. Endicott brought this action seeking compensation under the Jones Act and unseaworthiness.

Endicott brought this action in King County Superior Court and successfully struck down Icicle's jury demand. Following a bench trial the judge ruled for Endicott on both Jones Act negligence and unseaworthiness claims awarding Endicott damages and prejudgment interest.

Icicle appealed the verdict and prejudgment interest, the Court of Appeals certified this action to this Court, the Supreme Court of Washington.

Issue:
Is Icicle Seafoods, the defendant, entitled to a right to a trial by jury?

Held:
Icicle challenged the underlying judgment on four separate grounds. (1) Icicle claimed it had a right to a jury trial of Endicott's claim (2) Icicle contended that as a matter of federal law, the trial court did not have the discretion to award Endicott prejudgment interest. This Court only considered these first two contentions.

Icicle claimed it had a right to demand a jury trial of Endicott's claims, Endicott countered arguing that the Jones Act provided him a substantive right to determine whether the case is heard by a judge or a jury.

The Jones Act, provides a seaman injured in the course of employment, the right to bring a civil action at law, with the right of trial by jury, against the employer. By its terms, the Jones Act allows a seaman to sue at law, but not in admiralty, to recover for employers' negligence.

This Court looked to a previous case interpreting the right to trial by jury under the Jones Act, in Pan R.R. Co. v. Johnson (264 U.S. 375), there, the Supreme Court interpreted the Jones Act to allow both negligence suits in both admiralty and at law, the admiralty suit bringing a bench trial while the suit at common law would yield a jury trial.

However, this Court noted that the Johnson Court did not decide whether the plaintiff's power to elect between different forms of action is a (1) statutory right to elect the mode of trial (jury v. non jury) or (2) the right to select the jurisdictional basis of trial (at law v. in admiralty jdx). If is an at law v. admiralty determination, the right to a jury trial flows procedurally from the choice of jurisdiction.

This Court recognized that there is a split between the Ninth Circuit and California on one side and the Fifth, Seventh, Louisiana, and Illinois on the other side.

Endicott contended that the Ninth Circuit's "statutory" interpretation is the correct interpretation. This interpretation, in Craig v. Atl. Richfield Co. (19 F.3d 472), recognizes that the plaintiff has the option of maintaining an action at law with the right to trial by jury and that because the defendant is not mentioned, then the plaintiff holds the substantive right to elect the mode of trial. Endicott also points to other cases, in California, that denied the defendant(s) a jury trial right in Jones Act and general maritime suits filed in state court under the saving to suitors clause.

Icicle, however, claimed that the 5^th and 7^th's "jurisdictional" (not substantive) position applied to the Jones Act and that Endicott's Jones Act election is limited by the jurisdictional basis of trial (in admiralty v. at law).

This Court found that federal case law, interpreting the Jones Act, lead to the conclusion that the jurisdictional interpretation is correct, that Endicott's election exists solely as to the jurisdiction on which trial is based upon.

This Court noted that once a plaintiff has chosen to bring an action against his employer under the Jones Act, than he/she has elected to proceed at law against their employer. As such, the right to a trial by jury flows from this election, both the defendant and plaintiff have the right to a trial by jury.

This Court then examined the Jury Trial Right in Jones Act Cases under the Washington Constitution. Under the Washington Constitution, a right to a jury trial is based upon a two-step approach. (1) First, determine the scope of the jury trial right as it existed in 1889, the State constitution's adoption and (2) determine the causes of action which the right attaches.

Under the first step, the Washington Constitution allows the determination of damages, in an action at law, within the scope of a jury. The second step examines whether the type of action, undertaken by the Plaintiff, is analogous to one available at law. This Court found that the fact finding function of the jury in a Jones Act case is to determine damages for negligence.

This Court ultimately held that the right to a trial by jury is based upon the jurisdiction method in which the plaintiff elects to bring the action. Once the plaintiff, Endicott, had selected a suit at law in state court, state procedural law determined whether the parties may demand a jury trial. Because the Washington Constitution affords both Jones Act litigants a jury trial, this Court found that failing to allow Icicle Seafoods to assert their right to a jury trial was grounds for vacating the judgment.

Second, Icicle argued that Endicott was not entitled to prejudgment interest because since it is unavailable under FELA, it should also be unavailable under the Jones Act.  However, this Court noted if the trial is by jury, the case is analogous to a federal suit at law, and prejudgment interest is unavailable, however, if tried by the bench, the case is analogous to a federal suit in admiralty and prejudgment interest may be awarded. However, on remand, because Icicle will likely demand a jury trial, prejudgment interest will not be available under the Jones Act.

Comment:
This case illustrates a clear split between the 9^th Circuit, interpreting the Jones Act as allowing the "substantive" right to select a trial by jury (thus, allowing only the plaintiff to assert the right to a jury trial), and the 5^th and 7^th Circuits, interpreting the right to a jury trial under the Jones Act as flowing incidentally from either choosing to bring the action in admiralty or at law.

Simply put, if an employee chooses to sue their employer for negligence under the Jones Act then they have elected to bring their action at law and not under admiralty jurisdiction. As such, the right to a trial by jury flows from state procedural law. Usually, states will allow both the plaintiff and defendant to elect a trial by jury. The right to trial by jury is not a substantive right conferred exclusively to the plaintiff by the Jones Act.

Steve Gordon