Background: The plaintiff, David Acosta, filed this action pursuant to the Jones Act and general maritime law. 

Acosta claimed that he was injured in the course of his employment as a seaman. Acosta suffered his injury while aboard the defendant's, Aleutian Spray Fisheries, vessel, the F/V Siberian Sea.

When the injury occurred in September 2007, Acosta was not aboard the vessel; he was working on a forklift in a warehouse located about two hundred to three hundred yards from the dock where the vessel was moored.  Acosta was the assistant deck boss aboard the F/V Siberian Sea and it was part of his duties to retrieve "fiber"-pallet loaded with bundles of paper bags from the warehouse to resupply the vessel.

In the warehouse, Acosta picked up one pallet with the forklift but noticed the pallet was broken, so he set it down and began moving the bundles of fiber from the broken pallet to a sound one by hand. While he was off the forklift moving the bundles by hand, the top pallet from the stack behind the one he had moved fell upon him, causing injury to his back.

Acosta asserted in his Jones Act claim that his injury was caused by the negligence of his employer.

Defendant moved for summary judgment on the basis that Acosta cannot establish any negligent act on their part, as the warehouse where the injury occurred was not owned or controlled by the defendant, and no employee of the defendant's stacked the pallets of fiber and thereby created the dangerous condition.

Acosta asserted that regardless of who created the dangerous condition, defendants had a non-delegable duty to provide a safe place to work, including the duty to inspect the warehouse.

Defendant contended that to the extent a dangerous condition existed in the warehouse, Acosta himself was responsible for performing the inspection, as he was the assistant deck boss, and in charge of supervising work during the loading of supplies. Defendant argued that Acosta was thus barred from recovery under the primary duty doctrine. Defendant moved for partial summary judgment on plaintiff's Jones Act claim.

Issue: Whether the Court will grant the defendant's motion for partial summary judgment.

Held:

Defendant argued that because Acosta was himself the person who should have inspected the warehouse for unsafe conditions, then his Jones Act should be barred by the primary duty doctrine.

Under the primary duty rule, a seaman-employee may not recover from his employer for injuries caused by his own failure to perform a duty imposed on him by his employment.

The declarations and depositions filed by the parties demonstrated there were issues of fact regarding who created the dangerous condition in the warehouse, including whether Acosta was the person responsible for inspecting the conditions in the warehouse before starting work there and whether he could have discovered by inspection that the area around the stacked pallets was not safe.

The Court held these issues of fact must be determined by the trier of fact. Accordingly, the defendant's motion for partial summary judgment was denied as to the Jones Act claim

Comments:

The Jones Act, originally enacted as 46 U.S.C. § 688, provides that "a seaman injured in the course of his employment ... may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, railway employees apply to an action under this section."

Steve Gordon           
http://www.OffshoreInjuries.com