• Julius "Sam" Hines

"Don’t Blame Me, I Did What You Said”: The Significance of Orders in Maritime Cases

Updated: Dec 20, 2020

A panel of the United States Court of Appeals for the Fifth Circuit recently grappled with the significance, in crew injury cases, of orders from masters and other ship’s officers to members of the crew. Knight v. Kirby Offshore Pacific[1] presented a fairly commonplace fact situation: Knight, a seaman aboard the tug SEA HAWK, was ordered to change out a damaged mooring line. While working on the deck in relatively rough sea conditions, he stepped on the damaged line (which had been set to one side while the fresh line was installed), lost his footing, and injured his ankle. In his personal injury suit, the lower court found Knight’s employer at fault for sending the seaman out to work on a rolling deck; Knight, however, was also charged with a 50% share of negligence for failing to watch his footing on the deck.

On appeal, Knight argued that he could not be found negligent for following an order. He relied mainly on an earlier Fifth Circuit case, Williams v. Brasea, Inc.[2] In Williams, the master of a fishing vessel was injured after a deckhead powered up a winch, causing the master’s arms to become tangled in a line. There was a dispute as to whether the master had ordered the deckhead to turn the winch on. The lower court had reasoned that the deckhand was negligent in powering up the winch when it was not safe to do so, even if he did so in response to an order from the master. The Fifth Circuit disagreed, on the grounds that a subordinate crewmember is not negligent for carrying out an order. “Indeed,” wrote the Fifth Circuit, “a seaman may not be contributorily negligent for carrying out orders that result in his own injury, even if he recognizes possible danger.” 497 F.2d at 73.

Knight tried to apply this statement to his own appeal, arguing that he had been ordered to change out the line and could not be found negligent merely for doing so. The three Fifth Circuit judges who heard the appeal all had different takes. Justice Rhesa Barksdale characterized the above statement from Williams as “dicta” since it hadn’t been essential to the decision in that case. In general, only the “holding” of a court precedent has to be followed; extraneous “dicta” can be conveniently ignored. But Justice Barksdale also pointed out that other jurisdictions distinguish between “general” orders (“it’s time to go on watch”) and specific orders (“use this tool even though it is defective”). A crewmember can be expected to use ordinary care and caution in carrying out general orders. Whereas if a crewmember is specifically ordered to do something dangerous, one can hardly blame the crewmember for doing so.

Justice James Ho concurred with Justice Barksdale but didn’t buy the dicta part. The Williams case was, as far as he concerned, solid enough law. But there was nothing stopping the Court from refining the case to distinguish between general orders (like the one given to Knight) and specific orders (like the one allegedly given to the deckhand in Williams).

Justice Jennifer Elrod dissented. She also viewed Williams as sound law, but disagreed with her colleagues that it left room for a “general order versus specific order” distinction. And in addition, she thought Knight had been specifically ordered out onto the deck in rough conditions, which is what caused him to injure his ankle.

Knight illustrates the difficulty with many legal rules. They sound good in theory, but often the devil is in applying them to individual cases. “You take the next watch” or “fix the generator” seem like broad general orders implying the use of care and skill in executing them. “Go on watch” is hardly license to, for example, wander around the deck in a heavy gale, nor would the order to fix a piece of equipment necessarily entail the use of a defective tool. Seaman are usually following some kind of order, yet it is clear that they must exercise care for their own safety.

On the other hand, “I said get out there on the deck” or “use that tool, I don’t have time to find a spare” clearly leave the crewmember with no choice other than to do something dangerous (either that or disobey the order). But what about “change out that damaged mooring line,” the order in Knight? That order pretty much required Knight to work on the deck in moderately rough conditions (four-foot seas and winds of twenty miles per hour, which doesn’t sound unusual on a voyage from Washington State to Alaska), but did not keep him from watching his feet while he was at it. Put another way, the cause of the accident wasn’t necessarily the weather conditions, which experienced seamen encounter all the time; it was, at least in the judge’s eyes, also the result of Knight failing to exercise the care of a normal seaman in just that situation.

[1] Op. No. 19-30756 (Fifth Cir. Dec. 17, 2020). [2] 497 F.2d 67 (5th Cir. 1974).

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