Fuszek v. Royal King Fisheries, Inc., s. 95-35197

• Decision Date: 23 October 1996
• Docket Number: 95-35840 and 95-35874,Nos. 95-35197,s. 95-35197
• Citation: Fuszek v. Royal King Fisheries, Inc., 98 F.3d 514 (9th Cir. 1996)
• Parties: , 96 Cal. Daily Op. Serv. 7787, 96 Daily Journal D.A.R. 12,893 Vilmos FUSZEK, Plaintiff-Appellant, v. ROYAL KING FISHERIES, INC., a Washington corporation; Ft Royal King, # 592205; and Royal Seafoods, Inc., a Washington corporation, Defendants-Appellees. Vilmos FUSZEK, Plaintiff-Appellee, v. ROYAL KING FISHERIES, INC., a Washington corporation; Royal Seafoods Inc., a Washington corporation, Defendants-Appellants, and Ft Royal King, # 592205, Defendant. Vilmos FUSZEK, Plaintiff-Appellant, v. ROYAL KING FISHERIES, INC., a Washington corporation; Royal Seafoods Inc., a Washington corporation, Defendants-Appellees, and Ft Royal King, # 592205, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 514

98 F.3d 514

1997 A.M.C. 92, 96 Cal. Daily Op. Serv. 7787,

96 Daily Journal D.A.R. 12,893

Vilmos FUSZEK, Plaintiff-Appellant, v. ROYAL KING FISHERIES, INC., a Washington corporation; Ft

Royal King, # 592205; and Royal Seafoods, Inc., a

Washington corporation, Defendants-Appellees.

Vilmos FUSZEK, Plaintiff-Appellee, v. ROYAL KING FISHERIES, INC., a Washington corporation; Royal

Seafoods Inc., a Washington corporation,

Defendants-Appellants,

and

Ft Royal King, # 592205, Defendant.

Vilmos FUSZEK, Plaintiff-Appellant, v. ROYAL KING FISHERIES, INC., a Washington corporation; Royal

Seafoods Inc., a Washington corporation,

Defendants-Appellees,

and

Ft Royal King, # 592205, Defendant.

Nos. 95-35197, 95-35840 and 95-35874.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 9, 1996.

Decided Oct. 23, 1996.

Howard M. Goodfriend, Edwards, Sieh, Hathaway, Smith & Goodfriend, Seattle, WA; David Merritt Beninger, Luvera, Barnett Brindley, Beninger & Cunningham, Seattle, WA, for plaintiff-appellant-cross-appellee.

Robert N. Windes, LeGros, Buchanan & Paul, Seattle, WA, for defendants-appellees-cross-appellants.

Appeals from the United States District Court for the Western District of Washington, William L. Dwyer, District Judge, Presiding. D.C. No. CV-93-01247-WLD.

Before: LAY, ^* FERGUSON, and LEAVY, Circuit Judges.

LEAVY, Circuit Judge:

In these consolidated appeals we are called upon to determine whether section 3 of the Federal Employers Liability Act ("FELA"), 45 U.S.C. § 53, overrides the longstanding maritime doctrine of comparative fault in a situation in which a ship's violation of a safety regulation contributed to a seaman's injuries. Under the facts of this case, we hold that FELA precludes the reduction of damages on the ground of comparative fault.

FACTS AND PRIOR PROCEEDINGS

The FT ROYAL KING is a factory trawler owned by Royal King Fisheries, Inc. and operated by Royal Seafoods, Inc. In February 1993, the ROYAL KING was fishing and processing cod in the Bering Sea off the coast of Alaska. Vilmos Fuszek served aboard the vessel as a fish processing machine technician. Fuszek's duties were to assist in the operation and maintenance of the ROYAL KING's Baader 99 machine, which cuts whole fish into filets and dumps the unusable portions into an offal conveyor.

The ship's captain described the ROYAL KING's Baader 99 as a "piece of junk." Most of its original safety features had been removed; it ran poorly, jammed frequently, and could be kept running only with the constant intervention of both the factory superintendent and Fuszek. In order to avoid processing delays, ¹ the ROYAL KING's factory superintendent adopted the policy of clearing jams without turning the machine off; i.e., the operator had to reach into the machine and clear away any fish debris by hand while the machine was still running.

On February 28, 1993, Fuszek reached into the running machine to clear a jam and the glove on his right hand caught in a moving gear. His hand was severely lacerated and partially crushed. Two years and three surgeries later, Fuszek's injuries still prevented him from returning to work as a Baader 99 technician.

Fuszek timely filed the instant admiralty action in federal district court against the vessel, its owner, and its operator (collectively, "defendants"), seeking relief under general admiralty and maritime law as well as under the Jones Act, 46 U.S.C.App. § 688(a). At the conclusion of the trial, the district court held, inter alia, that the portion of the ROYAL KING occupied by the Baader 99 machine was unseaworthy and the vessel's owner and operator were negligent in maintaining the defective machine. The court entered judgment in favor of Fuszek but reduced his damage award by 25%, based on the court's finding that Fuszek's injuries were partially due to his own negligence. Fuszek filed a timely notice of appeal, arguing that section 3 of FELA prohibits a court from reducing a seaman's damage award for comparative negligence where the injury sustained was due to the employer's violation of a federal safety regulation.

The district court subsequently entered an order taxing the defendants with most of Fuszek's deposition costs while rejecting the defendants' request that their deposition costs be taxed against Fuszek. The defendants timely appealed, arguing that Fuszek's pretrial rejection of their offer of judgment under Fed.R.Civ.P. 68, which was more than the judgment, entitled the defendants to recover their deposition costs from Fuszek and precluded him from recovering his deposition costs from them. Fuszek timely cross-appealed, challenging the district court's taxation against him of the defendants' photocopying costs incurred after the settlement offer, while rejecting Fuszek's photocopying bill.

ANALYSIS

I

Fuszek first contends that the district court erred by reducing his damage award in an amount equal to the degree of his comparative negligence, because federal statutory law effectively overrides the maritime common law doctrine of comparative fault in situations in which seamen are injured by machinery that is not in compliance with federal safety regulations. We review de novo the district court's interpretation of federal law. See Newman v. Chater, 87 F.3d 358, 361 n. 2 (9th Cir.1996).

One of the three nearly insurmountable barriers long faced by workmen seeking to recover damages for injuries sustained in the workplace was the common law doctrine of contributory negligence. ² In 1908, however, Congress passed the first of what came to be known as the Federal Employers' Liability Acts, and thereby effectively abrogated the doctrine of contributory negligence in favor of comparative fault for railroad employees. See 45 U.S.C. § 53; W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 67 at 471 n. 21 (5th ed. 1984).

With this as our historical starting point, we begin by noting that the Jones Act expressly grants to seamen the rights and remedies available to railroad workers under FELA. See 46 U.S.C.App. § 688(a) ("Any seaman who shall suffer personal injury in the course of his employment may ... maintain an action for damages at law ... and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply."). Accord Kernan v. American Dredging Co., 355 U.S. 426, 439, 78 S.Ct. 394, 401-07, 2 L.Ed.2d 382 (1958).

Section 3 of FELA provides:

In all actions ... brought against any ... common carrier ... to recover damages for personal injuries to an employee, ... the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured ... shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury ... of such employee.

45 U.S.C. § 53 (in relevant part; emphasis in original).

One example of just such a "statute enacted for the safety of employees" (viz., seamen) is 46 U.S.C. § 4502(b)(2)(G). That statute provides, in relevant part, that "the Secretary shall prescribe regulations requiring the installation, maintenance, and use of ... equipment ... required to minimize the risk of injury to the crew during vessel operations, if the Secretary determines that a risk of serious injury exists that can be eliminated or mitigated by that equipment."

It is in line with section 4502(b)(2)(G) that the Coast Guard promulgated 46 C.F.R. § 28.215. ³ That regulation--which both sides concede applies here--requires all exposed machinery on board a vessel to have suitable hand covers. As it is undisputed that Fuszek was injured by exposed machinery on board a vessel lacking a suitable hand cover, Fuszek argues that his claim falls within the narrow statutory exception carved out by the Jones Act's incorporation of FELA § 3 to the general maritime common law rule of comparative fault, with the result that his damage award should be exempt from any reduction for comparative fault. We agree.

In the case of Roy Crook & Sons, Inc. v. Allen, 778 F.2d 1037 (5th Cir.1985) (on denial of reh'g), the Fifth Circuit adopted a broad reading of the Jones Act's incorporation of FELA § 3 and held that an employer's violation of a safety statute that was designed to protect its employees precluded the district court, sitting in admiralty, from considering the comparative fault of the injured employee-claimant. Id. at 1041, 1043. More to the point, the Fifth Circuit earlier held that a regulatory--not statutory--violation could amount to negligence per se under the Jones Act if five elements were met: "(1) a violation of Coast Guard regulations, (2) the plaintiff's membership in the class of intended beneficiaries of the regulations, (3) an injury of a type against which the regulations are designed to protect, (4) the unexcused nature of the regulatory violation, and (5) causation." Smith v. Trans-World Drilling Co., 772 F.2d 157, 160 (5th Cir.1985). Accord 1 T. Schoenbaum, Admiralty and Maritime Law, § 6-22 at...