Who is at fault when an accident happens aboard a vessel? The Luwisch v. American Marine Co case shows how both the seaman and their employer may share the fault in a personal injury case. See the full story to learn to what extent the crewmember’s recovery is affected. 

Mr. Luwisch’s Personal Injury Case

Mr. Luwisch worked as a crewmember for American Marine Corporation aboard its offshore tug the M/V AMERICAN CHALLENGER.  While he was attempting to store an extra line, he tripped and fell on another line that had been previously stored near the ladder that was used to access the upper deck. Losing his balance, the seaman fell 10 ft. from the upper deck to the lower deck. 

As a result, Mr. Luwisch sustained back injuries and filed a few claims against his employer for:

• maintenance and cure
• negligence under the Jones Act, and
• unseaworthiness.

American Marine attempted to blame its crewmember by claiming that Luwisch is responsible for causing his own injury because it was his duty to keep the vessel free from tripping hazards like the line he tripped on. But who was really to blame for the accident in the end?

The New Orleans federal court found that the M/V AMERICAN CHALLENGER was unseaworthy and that American Marine breached its Jones Act duty to provide Mr. Luwisch a reasonably safe place to work. However, the seaman was attributed a 20% comparative fault. 

The Force of the Primary Duty Rule

American Marine appealed to the Fifth Circuit, claiming the primary duty rule barred recovery. They argued that the injury stemmed from the crewmember’s failure to perform his duty. The Fifth Circuit affirmed the lower court’s ruling. So, Mr. Luwisch only received a 20% deduction of his total recovery.  

In the Fifth Circuit, which includes Texas, Louisiana, and Mississippi, the primary duty rule does not bar recovery by the seaman when his failure to perform his duty causes his injury and only reduces his recovery by his comparative fault. The only exception to the primary duty rule is when a seaman is 100% at fault. 

You should be aware that your Jones Act employer will always attempt to blame you for your injury to escape liability. But even if you bear some fault, it won’t completely bar your recovery. Learn more details about comparative negligence.