FEBRUARY 21, 2011 by Bill Abbott
In maritime lawsuits, shipowners have numerous legal defenses that they can use against seamen and maritime workers. One of the main defenses is comparative negligence. This defense decreases a seaman’s recovery by the percentage that he is found to be at fault for causing his own injury. There is a similar defense that can be used in maritime lawsuits when a ship’s officer brings a claim against a shipowner or employer. This defense is called the primary duty rule and it basically states that an employee who is responsible for maintaining safe conditions on a ship may not sue his employer for his own failure to maintain safe conditions.
Unlike the comparative negligence defense that is commonly used in maritime lawsuits, and merely decreases the amount that a seaman can recover in an injury or wrongful death claim, the primary duty rule bars recovery in maritime lawsuits altogether. However, in order for this defense to be successful, the defendant must offer evidence that the plaintiff consciously undertook a duty to maintain safe conditions aboard a vessel and that the plaintiff knowingly violated his duty. If the defendant-employer fails to prove each of the elements of this defense, the primary duty rule will not apply.
An example of this rule existed in the case of Malefant v. Beatty St. Props., Inc., 328 F.Supp.2d 668 (S.D.Tex.2004) where a plaintiff slipped because of missing nonskid tape that he had a duty to insure was in place. If the plaintiff’s injury was not caused by a specific condition that he had a duty to protect against, the defense may not be used by an employer or shipowner in maritime lawsuits.