Free Proposed Jury Instructions - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

JAN KOPACZ and CATHY KOPACZ,

: : Plaintiffs, : : v. : : DELAWARE RIVER AND BAY : AUTHORITY, and CRAIG SWETT, : : Defendants. : ____________________________________: : JAN KOPACZ, : : Plaintiff, : : v. : : DELAWARE RIVER AND BAY : AUTHORITY, : : Defendant. : ____________________________________:

C.A. No. 04-911 GMS Jury Trial Demanded

C.A. No. 04-1281 GMS

POINTS FOR CHARGE

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POINTS FOR CHARGE WITH OBJECTIONS TABLE OF CONTENTS

Sample Jury Instructions - Joint Submission Direct and Circumstantial Evidence Objections - Rulings on Evidence Depositions - Use as Evidence Use of Interrogatories at Trial Consideration of Evidence Statements of Counsel Credibility of Witnesses Expert Testimony Number of Witnesses Burden of Proof; Preponderance of the Evidence Deliberation and Verdict

Page 1 1 2 2 3 3 3 5 5 6 6

Liability Joint P-1 P-2 P-3 P-4 Maritime Law - General Maritime Law - General Unseaworthiness - Introduction Unseaworthiness - Liability without fault Unseaworthiness - Reasonable fitness 1

Page Number Plaintiff 9 11 13 15 DRBA Swett 10 12 14

D-5

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Liability Joint P-6 P-7 Unseaworthiness- Absolute duty Unseaworthiness - Only part need be unseaworthy Unseaworthiness - Equipment and signs for reasonable safety Unseaworthiness - Transitory condition Unseaworthiness - Safe working conditions Unseaworthiness - Reasonable safety

Page Number Plaintiff 17 19 DRBA 18 20 Swett

P-8

21

P-9

22

P-10

23

P-11

24

D-12 Unseaworthiness - Standard D-13 Unseaworthiness - Reasonably proper gear D-14 Contributory negligence P-15 P-16 The Jones Act - General The Jones Act - Causation 28 29

25 26

27 30 30 31 31 32

D-16 The Jones Act - Causation D-17 The Jones Act - Causation P-18 The Jones Act - Negligence generally

D-19 The Jones Act - Negligence D-20 The Jones Act - Ordinary activities P-21 The Jones Act - Causation 2 34

33 33

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Liability Joint P-22 The Jones Act - Safe place to work The Jones Act - Reasonable precautions

Page Number Plaintiff 35 DRBA Swett

P-23

36

37

D-24 The Jones Act - Open and obvious conditions P-25 The Jones Act - Degree of care 39

38

D-26 The Jones Act - Negligence P-27 The Jones Act - Duty to inspect The Jones Act - Rules and Procedures The Jones Act - Proper instructions The Jones Act - Remedial measures The Jones Act - Nondelegable duty The Jones Act - Imputable knowledge 40

39

P-28

41

P-29

42

P-30

43

P-31 P-32

44 45 46 46 48 50 51

D-33 The Jones Act - Duty to warn. P-34 P-35 P-36 P-37 The Jones Act - Constructive knowledge The Jones Act - Summary of negligence The Jones Act - Violation of safety rules The Jones Act - Customs and rules

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Liability Joint P-38 P-39 P-40 P-41 The Jones Act - Violation of statute The Jones Act - Additional precautions The Jones Act - Violation of statute. The Jones Act - Causation

Page Number Plaintiff 52 53 54 55 56 57 58 59 60 61 DRBA Swett

D-42 The Jones Act - More than one cause P-43 P-44 P-45 P-46 P-47 The Jones Act - Causation The Jones Act - Circumstantial evidence The Jones Act - Safe place to work Contributory negligence Contributory negligence - Not required to anticipate Contributory negligence - Possible defects Contributory negligence - No duty to anticipate negligence Contributory negligence Reasonably safe conditions

P-48 P-49

62 63

P-50

64

D-51 Reasonably safe place to work D-52 Reasonably prudent person D-53 Open and obvious conditions D-54 Negligence - reasonable safety D-55 Negligence - Normal activities D-56 Negligence - Necessary ingredient 4

65 66 67 68 69 70

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Liability Joint D-57 Negligence - General definition D-58 Proximate cause D-59 Own negligence D-60 Contributory negligence - Burden of proof

Page Number Plaintiff DRBA 71 72 73 74 Swett

General Maritime Law Joint P-61 S-62 P-63 P-64 S-66 P-67 Negligence Negligence is never presumed Proximate cause Breach of Statutory Duty Breach of Statutory Duty Contributory Negligence - Burden of proof Contributory Negligence - Burden of proof Contributory negligence - Burden of proof Contributory negligence - Duty to charge 82 80 77 78

Page Number Plaintiff 75 76 DRBA Swett

79

S-68

81

P-69

P-70

83 84 85

D-71 Negligence - Duty to charge P-72 Contributory negligence -dangerous job

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General Maritime Law Joint P-73 P-74 Assumption of the risk No assumption of the risk

Page Number Plaintiff 86 87 88 89 DRBA Swett

D-75 Open and obvious conditions P-76 Contributory negligence - dangerous job Contributory negligence - following orders Contributory negligence - negligence of employer Contributory negligence - violation of statute Contributory negligence - violation of safety rule Comparative negligence 91

P-77

90

P-78

P-79

92

P-80

93

P-81

94 95 96 97 98 99 100 101

D-82 Plaintiff's sole negligence S-83 P-84 P-85 P-86 P-87 P-88 Comparative negligence Plaintiff's burden of proof Contributory negligence not a bar Directed verdict Directed verdict Directed verdict

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Damages Joint P-89 Maritime damages

Page Number Plaintiff 102 103 104 105 DRBA Swett

D-90 Maritime damages P-91 Plaintiff's physical condition

D-92 Aggravation of pre-existing condition D-93 Aggravation of pre-existing condition D-94 Aggravation of pre-existing condition P-95 Pre-existing condition 106

105

105

D-97 Aggravation of injuries D-98 Aggravation of pre-existing condition D-99 Aggravation of pre-existing condition D-100 Aggravation of pre-existing condition P-101 Defendants liable for all damages P-102 Damages - Reasonable compensation P-103 Damages - Pain and suffering D-104 Damages - Not taxable S-105 No fault insurance Swett objections 113 111 112

107 108

109

110

114 115 116

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Maintenance and Cure Joint P-105 Maintenance and Cure D-106 DRBA's maintenance and cure charge S-107 Swett's maintenance and cure charge D-108 Maintenance and cure D-109 Maintenance and cure D-110 (Alternate) Maintenance and cure P-111 Loss of consortium 126

Page Number Plaintiff 117 119 121 DRBA Swett

122

123 124 125

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DIRECT AND CIRCUMSTANTIAL EVIDENCE You have heard the terms direct and circumstantial evidence. Direct evidence is evidence like the testimony of an eyewitness which, if you believe it, directly proves a fact. If a witness testified that she saw it raining outside, and you believed her, that would be direct evidence that it is raining. Circumstantial evidence is a chain of circumstances that indirectly proves a fact. If someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was raining. It is your job to decide how much weight to give the direct and circumstantial evidence. The law makes no distinction between the weight that you should give to either one, nor does it weigh that one is any better than the other. You should consider all the evidence, both direct and circumstantial, and give it whatever weight you believe it deserves.

OBJECTIONS - RULINGS ON EVIDENCE Lawyers have a duty to object to evidence that they believe has not been properly offered. You should not be prejudiced in any way against lawyers who make these objections or against the parties they represent. If I have sustained an objection, you must not consider that evidence and you must not speculate about whether other evidence might exist or what it might be. If I have overruled an objection, you are free to consider the evidence that has been offered.

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DEPOSITION - USE AS EVIDENCE Some testimony is in the form of sworn recorded answers to questions asked of a witness before the trial. This is known as deposition testimony. This kind of testimony is used when a witness, for some reason, cannot be present to testify in person. You should consider and weigh deposition testimony in the same way as you would the testimony of a witness who has testified in court. USE OF INTERROGATORIES AT TRIAL Some of the evidence has been in the form of interrogatory answers. An interrogatory is a written question asked by one party of the other, who must answer the question in writing and under oath, all before trial. You must consider interrogatories and the answers given to them just as if the questions had been asked and answered here in court.

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CONSIDERATION OF EVIDENCE You should use your common sense in weighing the evidence. Consider it in light of your everyday experience with people and events, and give it whatever weight you believe it deserves. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion.

STATEMENTS OF COUNSEL A further word about statements and arguments of counsel. The attorney's statements and arguments are not evidence. Instead, their statements and arguments are intended to help you review the evidence presented. If you remember the evidence differently from the attorneys, you should rely on your own recollection. The role of attorneys is to zealously and effectively advance the claims of the parties they represent within the bounds of the law. An attorney may argue all reasonable conclusions from evidence in the record. It is not proper, however, for an attorney to state an opinion as to the truth or falsity of any testimony or evidence. What an attorney personally thinks or believes about the testimony or evidence in a case is not relevant and you are instructed to disregard any personal opinion or belief concerning testimony or evidence that an attorney has offered during opening or closing arguments, or at any other time during the course of the trial. CREDIBILITY OF WITNESSES You are the sole judges of each witness's credibility. You should consider each witness' means of knowledge; strength of memory; opportunity to observe; how reasonable or unreasonable the testimony is; whether it's consistent or inconsistent; whether it has been

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contradicted; the witness' biases, prejudices, or interests; the witness' manner or demeanor on the witness stand; and all circumstances that, according to the evidence, could affect the credibility of the testimony. If you find the testimony to be contradictory, you must try to reconcile it, if reasonably possible, so as to make one harmonious story of it all. But if you can't do this, then it is your duty and privilege to believe the testimony that, in your judgment, is most believable and disregard any testimony that in your judgment, is not believable. In determining the weight to give to the testimony of a witness, you should ask yourself whether there is evidence tending to prove that the witness testified falsely about some important fact, or, whether there was evidence that at some other time the witness said or did something, or failed to say or do something that was different from the testimony he or she gave at trial. You have the right to distrust such witness' testimony in other particulars and you may reject all or some of the testimony of that witness or give it such credibility as you may think it deserves. You should remember that a simple mistake by a witness does not necessarily mean that the witness was not telling the truth. People may tend to forget some things or remember other things inaccurately. If a witness has made a misstatement, you must consider whether it was simply an innocent lapse of memory or an intentional falsehood, and that may depend upon whether it concerns an important fact or an unimportant detail. This instruction applies to all witnesses.

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EXPERT TESTIMONY Expert testimony is testimony from a person who has a special skill or knowledge in some science, profession, or business. This skill or knowledge is not common to the average person but has been acquired by the expert through special study or experience. You have heard medical experts being asked to give opinions based on a reasonable medical probability. In Delaware, a medical expert may not speculate about mere possibilities. Instead, the expert may offer an opinion only if it is based on a reasonable medical probability. Therefore, in order for you to find a fact based on an expert's testimony, that testimony must be based on reasonable medical probabilities, not just possibilities. In weighing expert testimony, you may consider the expert's qualifications, the reasons for the expert's opinions, and the reliability of the information supporting the expert's opinions, as well as the factors I have previously mentioned for weighing testimony of any other witness. Expert testimony should receive whatever weight and credit you think appropriate, given all the other evidence in the case.

NUMBER OF WITNESSES One more point about the witnesses. Sometimes jurors wonder if the number of witnesses who testified makes any difference. Do not make any decisions based only on the number of witnesses who testified. What is more important is how believable the witnesses were, and how much weight you think their testimony deserves. Concentrate on that, not the numbers.

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BURDEN OF PROOF; PREPONDERANCE OF THE EVIDENCE This is a civil case. Plaintiff has the burden of providing his claims and damages by what is called a preponderance of the evidence. Proof by a preponderance of the evidence means proof that something is more likely true than not. It means that certain evidence, when compared to the evidence opposed to it, has the most convincing force and makes you believe that something is more likely true than not. Preponderance of the evidence does not depend on the number or witnesses. If the evidence as to a particular element or issue is evenly balanced, the parts has not proved the element by a preponderance of the evidence and you must find against a party. In determining whether any fact has been proven by a preponderance of the evidence, you may consider the testimony of all witnesses, regardless of who called them and all exhibits received into evidence regardless of who produced them. Those of you who are familiar with criminal cases will have heard the term proof beyond a reasonable doubt. That burden does not apply in a civil case and you should therefore put it out of your mind in considering whether or not plaintiff has met his burden of proof on various issues. DELIBERATION AND VERDICT How you conduct your deliberations is up to you. But, however you conduct those deliberations, please remember that your verdict must represent the considered judgment of each juror. It is your duty, as jurors, to consult with one another and to deliberate with a view toward reaching an agreement, if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the

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evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion, if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because the opinion of your fellow jurors, or for the purpose of returning a verdict. Remember at all times that you are not partisans. You are judges ­ judges of the facts, not me. Your sole interest is to seek the truth from the evidence in that case. In order for you as a jury to return a verdict, it is necessary that each juror agree to the verdict. Your verdict must be unanimous. A form of verdict has been prepared for you. You will take this form to the jury room and when you have reached unanimous agreement as to your verdict, you will have your foreperson fill in, date and sign the form. You will then return to the courtroom, your foreperson will give the form to my Deputy Clerk and your verdict shall be announced. It is proper to add the caution that nothing said in these instructions, and nothing in the form of a verdict, is meant to suggest or convey in any way or manner any intimation as to what verdict I think you should find. What the verdict shall be is your sole and exclusive duty and responsibility. That concludes the part of my instructions explaining the rules for considering the testimony and evidence. Now let me finish up by explaining how you may communicate questions or messages to the court. Once you start deliberating, do not talk to the Jury Officer, to my Deputy Clerk, or to me, or to anyone else except each other about the case. If you have any questions or messages, you must write them down on a piece of paper, sign them, and then give them to the Jury Officer. The question will be given to me, and I will respond as soon as I can. I may have to talk to the

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lawyers about what you have asked, so it may take some time to get back to you. Any questions or messages are normally sent to me through the foreperson, who by custom of this court is juror Number 1. One more thing about messages. Do not ever write down or tell anyone else how you stand on your votes. For example, do not write down or tell anyone else that you are split 6-2, or 4-4, or whatever your vote happens to be. That should stay secret until you are finished. Let me finish by repeating something I said to you earlier. Nothing that I have said or done during this trial was meant to influence your decision in favor of either party. You must decide the case yourselves based on the evidence presented.

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POINTS FOR CHARGE WITH OBJECTIONS Liability Maritime Law - General Plaintiff's 1. The law which governs this case is the Maritime Law or the Law of the Sea. In many respects, it is different from the law which governs our everyday affairs. It is, therefore, necessary for you to disregard any notions that you might have as to what the law may be and to accept the law as I give it to you. This is your legal duty in every case and particularly so in this case. Seas Shipping Company v. Sieracki, 328 U.S. 35 (1946). Objection by Defendant Swett (confusing).

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DEFENDANT SWETT PROPOSED POINT NO. 1 1. Regarding the claim against the Delaware River and Bay Authority, the law

which governs this case is the Maritime Law or the Law of the Sea. In many respects, it is different from the law which governs our everyday affairs. It is, therefore, necessary for you to disregard any notions that you might have as to what the law may be and to accept the law as I give it to you. This is your legal duty in every case and particularly so in this case. Seas Shipping Company v. Sieracki, 328 U.S. 35 (1946). Plaintiff's comment: This is inaccurate because plaintiff's claim against Swett is also governed by the general maritime law so there should be no qualification.

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Plaintiff's 2. Maritime Law - General. In this case, the plaintiff has made two separate claims for recovery. He has made a claim under the doctrine known as "unseaworthiness," which is essentially a claim that the ship or its crew or equipment was not reasonably fit for its intended purposes. And he has also made a claim of negligence under a special act of Congress called the Jones Act. However, it is important to note at the outset that plaintiff's claims of "unseaworthiness" and of negligence under the Jones Act are alternative claims arising from the same injury. Each claim is governed by separate standards and must be considered separately, but plaintiff can only recover once for his injuries, even if you find that he has established both theories. The plaintiff need prove only one, but may prove both theories in order to recover. See generally L. Sand, et al., Modern Federal Jury Instructions, p. 90-57, Instruction 90-32 (1997).

OBJECTION BY DEFENDANT SWETT (confusing)­see attached revision Plaintiff's comment: Defendant Swett's revision is satisfactory with the addition proposed by plaintiff.

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DEFENDANT SWETT PROPOSED POINT NO. 2 2. In this case, the plaintiff has made two separate claims for recovery against the

Delaware River and Bay Authority. He has made a claim under the doctrine known as "unseaworthiness," which is essentially a claim that the ship or its crew or equipment was not reasonably fit for its intended purposes. And he has also made a claim of negligence under a special act of Congress called the Jones Act. However, it is important to note at the outset that plaintiff's claims of "unseaworthiness" and of negligence under the Jones Act are alternative claims arising from the same injury. Each claim is governed by separate standards and must be considered separately, but plaintiff can only recover once for his injuries, even if you find that he has established both theories. The plaintiff need prove only one, but may prove both theories in order to recover. See generally L. Sand, et al., Modern Federal Jury Instructions, p. 90-57, Instruction 90-32 (1997). Plaintiff has also made a claim for recovery against defendant Swett. That is also governed by the maritime law, and I will explain that later.

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Unseaworthiness - Introduction Plaintiff's 3. Under the Maritime Law which applies to this case, there is an absolute duty on the part of the shipowner to provide a safe and seaworthy vessel and to supply and keep in reasonable order the appliances and equipment appurtenant to the vessel for the safe use of the personnel who were engaged in rendering services aboard the vessel. Seas Shipping Company v. Sieracki, 328 U.S. 35 (1946).

OBJECTION BY DEF. SWETT (confusing as to Swett's involvement)­ see attached revision

OBJECTION BY DEF. DRBA (misleading)­ substitute attached instruction.

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DEFENDANT SWETT'S PROPOSED POINT NO. 3 3. Under the Maritime Law which applies to this case against the Delaware River and Bay Authority, there is an absolute duty on the part of the shipowner to provide a safe and seaworthy vessel and to supply and keep in reasonable order the appliances and equipment appurtenant to the vessel for the safe use of the personnel who were engaged in rendering services aboard the vessel. Seas Shipping Company v. Sieracki, 328 U.S. 35 (1946). Plaintiff's comment: The qualification is unnecessary in light of the introduction. DEFENDANT DRBA'S PROPOSED POINT NO. 3 3. Mr. Kopacz has also made a claim of "unseaworthiness", which is a claim that the vessel owner has not fulfilled a legal duty owed to members of the crew to provide a vessel reasonably fit for its intended purpose. 3A Federal Jury Practice & Instructions § 156.20 at 436 (West 5th Ed. 2001). Plaintiff's comment: confusing and misleading as an introduction to the concept of unseaworthiness.

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Plaintiff's 4. Unseaworthiness - Liability without fault. If an unseaworthy condition exists and is a substantial factor in causing an injury, the injured party who is entitled to the protection of this rule of law is entitled to recover from the shipowner, even though the shipowner or its agents or employees did not create the condition, did not know of its existence or had no opportunity to repair or correct it. In other words, this form of liability is not dependent upon any concept of carelessness or negligence. The warranty of seaworthiness is a species of liability without fault. Seas Shipping Company v. Sieracki, 328 U.S. 35 (1946).

DEFENDANT DRBA AGREES IF ATTACHED CHARGE IS ADDED.

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DEFENDANT DRBA'S PROPOSED POINT NO. 5 5. To be in a seaworthy condition means to be in a condition reasonably suitable and fit to be used, for the purpose or use for which provided or intended. An unseaworthy condition is found to have caused or contributed to plaintiff's injury only if it is a direct and substantial cause of such injury. Smith v. Marilyn M. Fishing, Inc., 173 Cal App. 3d 453, 458, 219 Cal Rptr. 57, 60 (1985) (citing Mitchell v. Trawler Racer, Inc. 362 U.S. 539, 550 (1960)). Plaintiff's comments: No objection if the words "only" and "a direct and" are deleted.

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Plaintiff's 6. Unseaworthiness - Absolute duty. The duty to provide a safe and seaworthy vessel is absolute. This means that the vessel owner cannot satisfy this obligation by the mere existence of reasonable care and diligence. If the vessel or any part thereof is found by you to be unseaworthy, and by reason thereof was a substantial factor in causing the injury which the plaintiff suffered, then your verdict for liability should be for the plaintiff and against the defendant regardless of the amount of diligence or care exercised by defendant. This is true even if the defendant was not aware of the actual condition of the part of the vessel involved. Mahnich v. Southern S.S. Company, 321 U.S. 96, 103 (1944).

OBJECTION BY DEF. DRBA (misleading)­ substitute attached instructions.

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DEFENDANT DRBA'S PROPOSED POINT NO. 6

6.

The owner of a ship is not required, however, to furnish an accident-free ship. A vessel is not called upon to have the best of appliances and equipment, or the finest of crews, but only such gear as reasonably proper and suitable for its intended use, and a crew that is reasonably competent and adequate. 3A Federal Jury Practice & Instructions § 156.20 at 436 (West 5th Ed. 2001).

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Plaintiff's 7. Unseaworthiness - Only part need be unseaworthy. In proving his unseaworthiness claim, the plaintiff is not required to establish that the entire ship was unseaworthy. Rather, he must show only that a part of the ship or its gear or crew was unseaworthy. See generally L. Sand, et al., Modern Federal Jury Instructions, p. 90-63, Instruction 90-37 (1997).

DEFENDANT DRBA AGREES IF ATTACHED CHARGE IS ADDED.

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DEFENDANT DRBA'S PROPOSED POINT NO. 7.5

7.5

The defendant is not obligated to furnish an accident free ship. Smith v. Marilyn M. Fishing, Inc., 173 Cal App. 3d 453, 458, 219 Cal Rptr. 57, 60 (1985) (citing Mitchell v. Trawler Racer, Inc. 362 U.S. 539, 550 (1960)).

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Plaintiff's 8. Unseaworthiness - Equipment and signs for reasonable safety. I also charge you that the defendant shipowner, having actual or constructive knowledge, and that means that it knew or should have known that a certain activity would occur, there is imposed upon it the absolute duty of supplying whatever equipment is necessary, including warning signs or devices, for permitting the conduct and accomplishment of an activity in reasonable safety. Failure to comply with this duty makes the shipowner liable and the vessel unseaworthy. Mesle v. Kea SS Co., 260 F.2d 747, 751 (1958).

DEFENDANT DRBA OBJECTS (misleading and misstatement of the law)

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Plaintiff's 9. Unseaworthiness - Transitory condition. The vessel is unseaworthy if the procedure or method used by the crew creates an undue risk of harm. This is true even though the condition be transitory and without knowledge on the part of the vessel's officers. Thompson v. Calmar Steamship Corp., 331 F.2d 657 (3rd Cir. 1964); Ferrante v. Swedish American Lines, 331 F.2d 571 (3rd Cir. 1964); Scott v. Isbrandtsen Company, Inc., 327 F.2d 113 (4th Cir. 1964).

DEFENDANT DRBA OBJECTS (misleading and inapplicable)

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Plaintiff's 10. Unseaworthiness - Safe working conditions. If hazardous conditions are or should be known to the employer, it is incumbent upon the employer, to provide safety regulations and require use of safety equipment to insure safe working conditions for the employees. See Hebert v. Otto Candies, Inc., 402 F.Supp. 503 (E.D.La. 1975).

DEFENDANT DRBA OBJECTS (misleading, misstatement of law and inapplicable)

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Plaintiff's 11. Unseaworthiness - Reasonable safety. If a shipowner knows or should know that a certain activity will occur, there is imposed upon it the absolute duty of supplying whatever equipment is necessary, including warning signs, for permitting the conduct and accomplishment of an activity in reasonable safety. Failure to comply with this duty makes the shipowner liable and the vessel unseaworthy. See Mesle v. Kea SS Co., 260 F.2d 747, 751 (3d Cir. 1958). A shipowner may not escape this liability, however, merely because the owner uses persons rather than machines or physical equipment to perform ship's work. See e.g. Waldron v. Moore-McCormack Lines, Inc., 87 S.Ct. 1410, 18 L.Ed.2d 482 (1967).

DEFENDANT DRBA OBJECTS (misstatement of law and confusing)

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DRBA 12. Unseaworthiness - Standard. "Seaworthy" means that the vessel and her equipment were reasonably fit for the purpose for which they were intended to be used. The standard is reasonable fitness, not perfection. A defendant discharges his duty if he furnishes a vessel reasonably suited for her intended service. Smith v. Marilyn M. Fishing, Inc., 173 Cal App. 3d 453, 458, 219 Cal Rptr. 57, 60 (1985) (citing Mitchell v. Trawler Racer, Inc. 362 U.S. 539, 550 (1960)).

[IF NOT ALREADY INCLUDED] Plaintiff - no objection.

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DRBA 13. Unseaworthiness. Reasonably proper gear. The owner of a ship is not required, however, to furnish an accident-free ship. A vessel is not called upon to have the best of appliances and equipment, or the finest of crews, but only such gear as reasonably proper and suitable for its intended use, and a crew that is reasonably competent and adequate. 3A Federal Jury Practice & Instructions § 156.20 at 436 (West 5th Ed. 2001).

[IF NOT PREVIOUSLY INCLUDED] Plaintiff objects because this is misleading on the facts of this case. This does not refer to the absence of warning signs or the failure to train the crew to instruct drivers not to back up once parked. Reference to "gear" and a crew which is "competent and adequate" is inappropriate in this case.

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DRBA 14. Contributory negligence. The DRBA denies that any unseaworthiness existed at the time of the incident, and alternatively states that if the vessel or its equipment was unseaworthy, then the unseaworthiness did not cause Mr. Kopacz's injury. The DRBA further alleges that contributory negligence on the part of Mr. Kopacz was also a cause of any injuries he sustained. If you find that any unseaworthiness on the part of the vessel was a substantial cause of his injuries, you must then consider whether Mr. Kopacz's own negligence contributed to his injury. If you find that the DRBA has met its burden on this issue, that will not prevent a recovery by Mr. Kopacz. In other words, if you find that the accident was partly due to the fault of Mr. Kopacz, that his own negligence was, for example, 50% responsible for the damage, then you would fill in that percentage as your finding on the special verdict form that I will explain in a minute. Such a finding would not prevent Mr. Kopacz from recovering; the Court would merely reduce the total damages by the percentage that you insert. Of course, by using the number 50% as an example, I am not suggesting any specific figure at all. If you find that Mr. Kopacz was negligent, you might find 1% or 99%. 3A Federal Jury Practice & Instructions § 156.20 at 435 (West 5th Ed. 2001).

Plaintiff objects because this is a jury speech, not a charge. It also fails to tell the jury that it is DRBA's burden to prove contributory negligence by a preponderance of this evidence.

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Plaintiff's 15. The Jones Act - General. The plaintiff also brings this action against the defendant under the Jones Act. The Jones Act provides in substance that every employer whose employees are members of the crew of a vessel in navigation shall be liable in damages for injuries to its employees resulting in whole or in part from the negligence of any of its officers, agents or employees or from any defect or deficiency, due to its negligence, in the vessel, its crew or its equipment. L. Sand, et al., Modern Federal Jury Instructions, p. 90-7, Instruction 90-1 (1997).

DRBA AGREES IF ATTACHED CHARGES ADDED.

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Plaintiff's 16. The Jones Act - Causation. The plaintiff is entitled to recover from the defendant and meets the burden of proof imposed upon him under this Act of Congress, if he convinces you, by a fair preponderance of the evidence, that the negligence of the defendant played any part, even the slightest, in causing the plaintiff to suffer injury. Idzojtic v. Pennsylvania Railroad Co., 431 F.2d 1029 (3d Cir. 1978).

DRBA OBJECTS (misleading), but will agree to modified charge 16 if proposed charge 17 is included.

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DEFENDANT DRBA'S PROPOSED POINTS NOS. 15 AND 16

15.

The duty owed to the seaman is to provide a reasonably safe place to work.

Brogan v.

United New York Sandy Hook Pilots' Assoc., Inc., 213 F. Supp. 2d 432, 435 (D.N.J. 2002)

16.

The duty is measured by what a reasonably prudent person would anticipate or foresee resulting from the particular circumstances. Brogan, 213 F. Supp. 2d at 436 (quoting from Wilburn v. Maritrans GP, Inc., 139 F.3d 350, 357 (3d Cir. 1998)).

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DRBA'S PROPOSED POINTS NOS. 16 AND 17

16.

The plaintiff is entitled to recover from the defendant if he convinces you, by a fair preponderance of the evidence, that the negligence of the defendant played any part, even the slightest, in causing the plaintiff to suffer injury. Idzojtic v. Pennsylvania Railroad Co., 431 F.2d 1029 (3d Cir. 1978).

17.

The requirement of causation is not discarded in a Jones Act case. Chisholm v. Sabine Towing & Trasp. Co., Inc., 679 F. 2d 60 (5th Cir. 1982). Although the strength of the link or connection between the defendant's negligence and the injury is relaxed under the Jones Act, this does not "impair the principle that in Jones Act cases, cause, in fact, is still a necessary ingredient of liability." Id. at 62 (emphasis added).

Plaintiff objects because this is confusing and unnecessary.

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Plaintiff's 18. The Jones Act - Negligence generally. Since the defendant is a corporate entity, which can act only through its officers, employees, and agents, it is liable under the Jones Act for their negligence. Negligence is simply the failure to use the same degree of care which a person of ordinary prudence would use in the circumstances of a given situation. It can consist of doing something which a reasonably prudent person would not have done or failing to do something which a reasonably prudent person would have done under the circumstances. See Gallick v. Baltimore & Ohio R.R., 372 U.S. 108 (1963); Tiller v. Atlantic Coast Line R.R., 318 U.S. 54 (1943). See generally 5 L. Sand, et al., Modern Federal Jury Instructions, p. 89-22, Instruction 89-9 (1997).

DRBA AGREES IF ATTACHED CHARGES ARE INCLUDED.

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DRBA'S PROPOSED POINTS NOS. 19 AND 20

19.

Under the Jones Act, plaintiff must prove that the DRBA was negligent. The occurrence of an accident, standing alone, does not mean that anyone's negligence caused the accident. You must determine if the operation in question was reasonably safe under the circumstances. The fact that a certain practice has been continued for a long period of time does not mean that it is reasonably safe under all circumstances. However, a practice is not necessarily unsafe or unreasonable merely because it injures someone. 3A Federal Jury Practice & Instructions § 156.20 at 433 (West 5th Ed. 2001).

20.

Because a Jones Act employer is not an insurer of its employees' safety at sea, the employer is not liable when an injury arises solely from the ordinary and normal activities of a seaman's work in the absence of proof that the injury complained of was caused by the employer's negligence. Harrison v. Seariver Maritime, Inc., 2003 U.S. App. Lexis 2472 at 5 (January 28, 2003).

Plaintiff objects to number 20 because it is confusing.

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Plaintiff's 21. The Jones Act - Causation. This means that if the negligence of a fellow employee or officer played any part, even in the slightest, in causing the injury suffered by the plaintiff, then the defendant vessel owner is liable for the consequences of that negligence. Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 523, 1 L.Ed.2d 511, 514 (1957); Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 507, 1 L.Ed.2d 493, 500 (1957).

DRBA OBJECTS (no allegation that fellow employee caused injury)

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Plaintiff's 22. The Jones Act - Safe place to work. The vessel owner, through its crew members, owe to the persons serving aboard the vessel the non-delegable duty to exercise reasonable care to provide those persons with a safe place to work. The failure to provide plaintiff with a safe place to work constitutes negligence on the part of the shipowner. Plaintiff is entitled to a verdict in his favor and against the defendant and meets the burden of proof imposed upon him under The Jones Act if he convinces you that the negligence of the defendant or the failure of the defendant to provide him with a reasonably safe place within which to work played any part, even the slightest, in causing him to suffer the injuries that he sustained in this case. Brabazon v. Belships Co., Ltd., 202 F.2d 904 (3rd Cir. 1953); Earles v. Union Barge Line Corp., 486 F.2d 1097 (30rd Cir. 1973); Beard v. Ellerman Lines, Ltd., 289 F.2d 201 (3d Cir. 1961).

DRBA OBJECTS. (Cumulative)

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Plaintiff's 23. The Jones Act - Reasonable precautions. This non-delegable duty imposes on a shipowner a responsibility to make reasonable inspections of its vessels, premises and equipment to discover any dangers or defects and to take reasonable precautions to protect its employees from possible harm. See Shenker v. Baltimore & Ohio R.R., 374 U.S. 1 (1963). See generally L. Sand, et al., Modern Federal Jury Instructions, p. 90-34, Instruction 90-18 (1997).

DRBA ACCEPTS IF ATTACHED CHARGE IS INCLUDED.

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DRBA PROPOSED POINT NO. 24 24. The Jones Act - Open and obvious conditions. A shipowner in a Jones Act case has a duty to warn its employees of dangers which are not reasonably known. In other words, shipowners need not warn seamen of dangers that are "open and obvious." Patterson v. Allseas USA, Inc., 2005 WL 1350594 (Slip Opinion, 5th Cir., Docket No. 04-40949, June 8, 2005).

Plaintiff objects because this is confusing a contention that something was "open and obvious" is not a factor in this case.

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Plaintiff's 25. The Jones Act - Degree of care. The degree of care which must be exercised, however, varies with the level of risk. The greater the risk of harm, the greater the required level of care. See Urie v. Thompson, 337 U.S. 163 (1949); Bailey v. Central Vermont Ry., 319 U.S. 350 (1943); Tiller v. Atlantic Coast Line R.R., 318 U.S. 54 (1943). See generally 5 L. Sand, et al., Modern Federal Jury Instructions, p. 90-31, Instruction 90-15 (1997).

DRBA ACCEPTS IF ATTACHED CHARGE IS INCLUDED.

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DRBA PROPOSED POINT NO. 26 26. The Jones Act - Negligence. "Negligence" is the failure to use reasonable care. Reasonable care is that degree of care that a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances, or in failing to do so something that a reasonably careful person would do under like circumstances. 3A Federal Jury Practice & Instructions § 156.20 at 434 (West 5th Ed. 2001).

Plaintiff has no objection.

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Plaintiff's 27. The Jones Act - Duty to inspect. The shipowner has a duty to inspect in order to insure that the instrumentalities used by the employees are available and reasonably safe and this duty is a continuing one. Ragsdell v. Southern Pacific Transportation Co., 688 F.2d 1281 (C.A. Ariz., 1982); St. Louis Southwestern R.R. Co. v. Greene, 552 S.W.2d 880 (Tex. Civ. App. 1977); Lowden v. Hanson, 134 F.2d 348 (C.C.A. Minn. 1943); Sheffler v. Pennsylvania R. Co., 176 F.2d 368 (C.A. Pa. 1949); Williams v. Atlantic Coast Line Co., 190 F.2d 744 (C.A. Ga. 1951); Isgett v. Seaboard Coast Line R. Co., 332 F. Supp. 1127 (D.C. S.C. 1971).

DRBA OBJECTS (cumulative and not applicable)

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Plaintiff's 28. The Jones Act - Rules and procedures. A shipowner may also be found negligent under the Jones Act if it fails to prescribe, promulgate, and/or enforce adequate rules, procedures, and regulations for the safe operation of its vessel, equipment, tools, machinery and appliances. See Moore v. Chesapeake & Ohio Ry., 649 F.2d 1004 (4th Cir. 1981); Phillips v. Chesapeake & Ohio Ry., 475 F.2d 22 (4th Cir. 1973).

DRBA OBJECTS (not applicable or supported by evidence) Plaintiff's comment: DRBA failed to warn drivers not to back up once parked and did not train its employees how to prevent this.

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Plaintiff's 29. The Jones Act - Proper instructions. And it obligates a shipowner to properly instruct its employees on the safe operation of its vessel, equipment, tools, machinery, and appliances. See Stone v. New York, Chicago & St. Louis R.R., 344 U.S. 407 (1953); Ybarra v. Burlington Northern, Inc., 689 F.2d 147 (8th Cir. 1982); Heater v. Chesapeake & Ohio Ry., 497 F.2d 1243 (7th Cir.), cert. denied, 419 U.S. 1013 (1974). Thus, you may find the defendant negligent if you find that it instructed its employees to perform a task using a procedure or method which it knew or in the exercise of reasonable care should have known would result in injury. See generally 5 L. Sand, et al., Modern Federal Jury Instructions, p. 90-37, Instruction 8921 (1997).

DRBA OBJECTS (not applicable or supported by evidence) See plaintiff's comment to preceding point.

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Plaintiff's 30. The Jones Act - Remedial measures. Even when the shipowner takes precautions for an employee's safety, it cannot escape liability if further remedial measures were both possible and reasonable yet not effectuated. See Williams v. Long Island R.R., 196 F.3d 402 (2d Cir. 1999); Martinez v. Union Pacific R.R., 82 F.3d 223 (8th Cir. 1996); Eggert v. Norfolk & Western Ry., 538 F.2d 509 (2d Cir. 1976); Panger v. Duluth, Winnipeg & Pacific Ry., 490 F.2d 1112 (8th Cir. 1974); Rodriguez v. Delray Connecting R.R., 473 F.2d 819 (6th Cir. 1973); Schillie v. Atchison, Topeka & Santa Fe Ry., 222 F.2d 810 (8th Cir. 1955); Boston & Maine R.R. v. Meech, 156 F.2d 109 (1st Cir.), cert. denied, 329 U.S. 763 (1946); Morgan v. Consolidated Rail Corp., 509 F. Supp. 281 (S.D.N.Y. 1980); Isgett v. Seaboard Coast Line R.R., 332 F. Supp. 1127 (D.S.C. 1971); Seeberger v. Burlington Northern R.R., 138 Wash.2d 815, 982 P.2d 1149 (1999); Missouri-Kansas-Texas R.R. v. Miller, 486 P.2d 630 (Okla. 1971); Wright v. Chicago, Burlington & Quincy R.R., 392 S.W.2d 401 (Mo. 1965); Welsh v. Burlington Northern R.R., 719 S.W.2d 793 (Mo.App. 1986); Campbell v. Chesapeake & Ohio Ry., 36 Ill.App.2d 276, 183 N.E.2d 736 (1962); Wawryszyn v. Illinois Central R.R., 10 Ill.App.2d 394, 135 N.E.2d 154 (1956).

DRBA OBJECTS (incomprehensible, confusing)

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Plaintiff's 31. The Jones Act - Nondelegable duty. The Jones Act, therefore, imposes on a shipowner a non-delegable duty to guard against any risks or dangers of which it knew or by the exercise of reasonable care should have known. See Gallick v. Baltimore & Ohio R.R., 372 U.S. 108 (1963); Urie v. Thompson, 337 U.S. 163 (1949). See generally 5 L. Sand, et al., Modern Federal Jury Instructions, p. 90-28, Instruction 90-13 (1997). A shipowner, however, need not foresee the particular consequences of its negligent acts in order to be held liable under the Jones Act. See Gallick, supra. Thus, it must compensate the plaintiff for even the improbable or unexpectedly severe consequences of its negligence. See Gallick, supra.

DRBA OBJECTS (prejudicial and misleading)

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Plaintiff's 32. The Jones Act - Imputable knowledge. You may impute actual knowledge of a dangerous condition or defect to the shipowner if its officers, agents, or employees knew or should have known of the condition. See Gallick v. Baltimore & Ohio R.R., 372 U.S. 108 (1963). See generally 5 L. Sand, et al., Modern Federal Jury Instructions, p. 90-29, Instruction 90-14 (1997).

DRBA AGREES AS LONG AS ATTACHED CHARGE IS INCLUDED.

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DRBA PROPOSED POINT FOR CHARGE NO. 33 33. The Jones Act - Duty to warn. A shipowner in a Jones Act case has a duty to warn its employees of dangers which are not reasonably known. In other words, shipowners need not warn seamen of dangers that are "open and obvious." Patterson v. Allseas USA, Inc., 2005 WL 1350594 (Slip Opinion, 5th Cir., Docket No. 04-40949, June 8, 2005).

Plaintiff's comment: DRBA contends that it warned plaintiff not to stand behind a parked car, so it obviously did not consider the dangers to be "open and obvious."

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Plaintiff's 34. The Jones Act - Constructive knowledge. You may also impute constructive knowledge of a dangerous condition or defect to the shipowner if the evidence reveals that the hazard has existed for a sufficiently long period of time that the defendant, upon reasonable inspection, should have discovered it. See Baltimore & Ohio R.R. v. Flechtner, 300 F. 318 (6th Cir.), cert. denied, 266 U.S. 613 (1924); Smith v. Schumacker, 30 Cal.App.2d 251, 85 P.2d 967 (1938), cert. denied, 307 U.S. 646 (1939); Doyle v. St. Louis Merchants' Bridge Terminal Ry., 326 Mo. 425, 31 S.W.2d 1010 (1930), cert. denied, 283 U.S. 820 (1931); Galveston, Harrisburg & San Antonio Ry. v. Miller, 192 S.W. 593 (Tex.App. 1917). See generally 5 L. Sand, et al., Modern Federal Jury Instructions, p. 90-29, Instruction 90-14 (1997).

DRBA OBJECTS (cumulative)

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Plaintiff's 35. The Jones Act - Summary of negligence. In summary, if you find by a preponderance of the evidence that the defendant failed to exercise reasonable care to provide the plaintiff with a reasonably safe place to work, reasonably safe conditions, tools or equipment, or failed in any other way to exercise reasonable care in the circumstance, you may find that it was negligent. See generally 5 L. Sand, et al., Modern Federal Jury Instructions, p. 90-42, Instruction 90-24 (1997).

DRBA AGREES IF ATTACHED CHARGE IS INCLUDED.

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DRBA PROPOSED POINT FOR CHARGE NO. 35 35. The Jones Act - Employer not an insurer. Because a Jones Act employer is not an insurer of its employees' safety at sea, the employer is not liable when an injury arises solely from the ordinary and normal activities of a seaman's work in the absence of proof that the injury complained of was caused by the employer's negligence. Harrison v. Seariver Maritime, Inc., 2003 U.S. App. Lexis 2472 at 5 (January 28, 2003).

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Plaintiff's 36. The Jones Act - Violation of safety rules. In addressing the question of negligence, you may consider whether the shipowner's conduct violated its own safety rules or customary practices in the industry or applicable state law. See Armstrong v. Burlington Northern R.R., 139 F.3d 1277 (9th Cir. 1998); Moses v. Union Pacific R.R., 64 F.3d 413 (8th Cir. 1995); DeBiasio v. Illinois Central R.R., 52 F.3d 678 (7th Cir. 1995), cert. denied, 516 U.S. 1157 (1996); Fulton v. St. Louis-San Francisco Ry., 675 F.2d 1130 (10th Cir. 1982); Brown v. Cedar Rapids & Iowa City Ry., 650 F.2d 159 (8th Cir. 1981); Mileski v. Long Island R.R., 499 F.2d 1169 (2d Cir. 1974); Duncan v. St. Louis-San Francisco Ry., 480 F.2d 79 (8th Cir.), cert. denied, 414 U.S. 859 (1973); Boston & Maine R.R. v. Talbert, 360 F.2d 286 (1st Cir. 1966); Johnson v. Erie Lackawanna R.R., 236 F.2d 352 (2d Cir. 1956); Haines v. Reading R.R., 178 F.2d 918 (3d Cir. 1950). See generally 5 L. Sand, et al., Modern Federal Jury Instructions, p. 9038, Instruction 90-22 (1997).

DRBA OBJECTS (no evidence to support charge) DRBA relies on its own SOPs, so there is evidence to support this charge.

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Plaintiff's 37. The Jones Act - Customs on rules. A shipowner's compliance with industry customs or rules, however, does not insulate it from liability. It may still be found negligent where these customs or rules do not reflect the level of care which a reasonably prudent person would exercise under the circumstances. See Urie v. Thompson, 337 U.S. 163 (1949). See generally 5 L. Sand, et al., Modern Federal Jury Instructions, p. 90-38, Instruction 90-22 (1997). An industry may never set its own standards. The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932), cert. denied, Eastern Transportation Co. v. Northern Barge Corp., 287 U.S. 602 (1932). Even its universal disregard of a precautionary measure may not preclude a finding of liability should you determine that common procedure would dictate its implementation. See The T.J. Hooper, supra.

DRBA OBJECTS (no evidence to support charge) Plaintiff assumes that DRBA contends that its SOPs are consistent with industry rules.

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Plaintiff's 38. The Jones Act - Violation of statute. Moreover, if the evidence reveals that the defendant violated an applicable regulation or statute or permitted the violation of an applicable regulation or state law, and that this act and/or omission contributed in any way to plaintiff's injuries, then you must find that the defendant was negligent as a matter of law. See Crane v. Cedar Rapids & Iowa City Ry. 395 U.S. 164 (1969); Kernan v. American Dredging Co., 355 U.S. 426 (1958); Urie v. Thompson, 337 U.S. 163 (1949); Seaboard Air Line Ry. v. Horton, 233 U.S. 492 (1994); Morant v. Long Island R.R., 66 F.3d 518 (2d Cir. 1995); Walden v. Illinois Central Gulf R.R., 975 F.2d 361 (7th Cir. 1992); Eckert v. Aliquippa & Southern R.R., 828 F.2d 183 (3d Cir. 1987); Diede v. Burlington Northern R.R., 772 F.2d 593 (9th Cir. 1985); Schroeder v. Pennsylvania R.R., 397 F.2d 452 (7th Cir. 1968); Schultz v. Illinois Central R.R., 1994 WL 643244 (N.D.Ill., November 9, 1994). See also Rabon v. Automatic Fasteners, Inc., 672 F.2d 1231 5th Cir. 1982); Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981); National Marine Services, Inc. v. Gulf Oil Co., 433 F.Supp. 913, 919-920 (E.D.La.1977), aff'd 608 F.2d 522 (5th Cir. 1979); Buhler v. Marriott Hotels, Inc., 390 F.Supp. 999 (E.D.La.1974). In this connection, I charge you that the Delaware Motor Vehicle Code provides in part: The driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic.

DRBA OBJECTS. (Misstatement of law, misleading and inapplicable) Plaintiff contends that plaintiff violated a state statute and that DRBA's negligence permitted this to happen.

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Plaintiff's 39. The Jones Act - Additional precautions. Indeed, even if the evidence reveals that the defendant complied with an applicable safety statute and/or regulation, it is still liable for plaintiff's injuries if, under the circumstances, a reasonable person would have taken additional precautions to prevent harm. See King v. Southern Pacific Transportation Co., 855 F.2d 1485 (10th Cir. 1988) (citing Urie v. Thompson, 337 U.S. 163 (1949)); Mosco v. Baltimore and Ohio R.R., 817 F.2d 1088 (4th Cir.), cert. denied, 484 U.S. 851 (1987); Earwood v. Norfolk Southern Ry., 845 F. Supp. 880 (N.D.Ga. 1993); Morgan v. Consolidated Rail Corp., 509 F. Supp. 281 (S.D.N.Y. 1980); Fontaine v. National R.R. Passenger Corp., 54 Cal.App.4th 1519, 63 Cal.Rptr.2d 644 (1997); Failing v. Burlington Northern R.R., 815 P.2d 974 (Colo.App. 1991).

DRBA OBJECTS. (Misstatement of law, misleading and inapplicable) Plaintiff's comment is the same as the preceding one.

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Plaintiff's 40. The Jones Act - Violation of statute. Moreover, even if these statutes and/or regulations are not applicable to the specific operation involved in plaintiff's accident, defendant's noncompliance therewith is still evidence of negligence in this action. See Ries v. National R.R. Passenger Corp., 960 F.2d 1156 (3d Cir. 1992); Albrecht v. Baltimore & Ohio R.R., 808 F.2d 329 (4th Cir. 1987); Miller v. Chicago & North Western Transportation Co., 925 F. Supp. 583 (N.D.Ill. 1996); Manes v. Metro-North Commuter R.R., 801 F. Supp. 954 (D.Conn. 1992), aff'd, 990 F.2d 622 (2d Cir. 1993). It is relevant to your determination of what precautions a reasonably prudent employer would have implemented under similar circumstances. See Ries, supra; Albrecht, supra; Miller, supra; Manes, supra.

DRBA OBJECTS. (Misstatement of law, misleading and inapplicable)

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Plaintiff's 41. The Jones Act - Causation. Under the Jones Act, a shipowner is liable in damages for breaching its non-delegable duty to provide a safe place to work if the negligent acts or omissions of its officers, agents, or employees played any part, even the slightest, in producing plaintiff's injury. See Rogers v. Missouri Pacific R.R., 352 U.S. 500 (1957). It does not matter that, from the evidence, you may also attribute plaintiff's injury to other causes. See Rogers, supra. The involvement of any other cause does not prevent a finding for the plaintiff, as long as you determine that the employer's negligence played any part, no matter how slight, in causing the injury. See Rogers, supra. See generally 5 L. Sand, et al., Modern Federal Jury Instructions, p. 90-43, Instruction 90-25 (1997).

DRBA OBJECTS (misleading and confusing). Substitute attached charge.

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DRBA PROPOSED POINT FOR CHARGE NO. 42 42. The Jones Act - More than one cause. Negligence may be a cause of damage even though it operates in combination with the act of another, some natural cause, or some other cause occurs at the same time as the negligence and if the DRBA's negligence played any part, no matter how small, in causing the damage, you may find for the plaintiff under the Jones Act. If that is the case, however, you will be asked to assign percentages of negligence, if any is found, to the DRBA, Swett and Kopacz himself. Plaintiff's comment: This is misleading and inapplicable since DRBA contends that plaintiff's injuries are from a pre-existing condition.

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Plaintiff 43. The Jones Act - Causation. Plaintiff, therefore, is entitled to recover from the defendant should you find from a preponderance of the evidence that the shipowner's negligent acts or omissions played any part, even the slightest, in producing his injuries. See Rogers v. Missouri Pacific R.R., 352 U.S. 500 (1957).

DRBA OBJECTION (cumulative)

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Plaintiff's 44. The Jones Act - Circumstantial evidence. In a Jones Act case, liability may be inferred completely from circumstantial evidence. See Rogers v. Missouri Pacific R.R., 352 U.S. 500 (1957); Mendoza v. Southern Pacific Transportation Co., 733 F.2d 631 (9th Cir. 1984); Pekowic v. Erie Lackawanna R.R., 430 F.2d 697 (3d Cir. 1970); Moore v. Chesapeake & Ohio Ry., 493 F. Supp. 1252 (S.W.Va. 1980), aff'd, 649 F.2d 1004 (4th Cir. 1981). It may be based exclusively on inferences you draw from the facts and circumstances of the case which, in light of your ordinary experience, reasonably suggest that the shipowner's negligence played even the slightest part in producing plaintiff's injury. See Henwood v. Coburn, 165 F.2d 418 (8th Cir. 1948).

DRBA OBJECTION. (misleading)

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Plaintiff's 45. The Jones Act - Safe place to work. Under the Jones Act, therefore, a seaman is entitled to assume that his employer properly discharged its duty to provide him a reasonably safe place to work and that he is not exposed to any hazards or dangers. Prosser, Torts, p. 642; Holmes v. Ginter Restaurant Co., 54 F.2d 876 (1st Cir. 1932). See also Cazad v. Chesapeake & Ohio Ry., 622 F.2d 72 (4th Cir. 1980); Williams v. Atlantic Coast Line R.R., 190 F.2d 744 (5th Cir. 1951); Pitt v. Pennsylvania R.R., 66 F. Supp. 443 (E.D.Pa. 1946), aff'd, 161 F.2d 733 (3d Cir. 1947).

DRBA OBJECTION. (misleading)

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Plaintiff's 46. Contributory negligence. A seaman, therefore, is not required to anticipate defects or dangerous conditions of which he has no knowledge. Prosser, Torts, p. 642; Holmes v. Ginter Restaurant Co., 54 F.2d 876 (1st Cir. 1932). See also Tiller v. Atlantic Coast Line R.R., 318 U.S. 54 (1943); Birchem v. Burlington Northern R.R., 812 F.2d 1047 (8th Cir. 1987); Almendarez v. Atchison, Topeka & Santa Fe Ry., 426 F.2d 1095 (5th Cir. 1970); Koshorek v. Pennsylvania R.R., 318 F.2d 364 (3d Cir. 1963); Johnson v. Erie R.R., 236 F.2d 352 (2d Cir. 1956); Thomas v. Union Ry., 216 F.2d 18 (6th Cir. 1954); Atlantic Coastline R.R. v. Burkett, 192 F.2d 941 (5th Cir. 1951); Mumma v. Reading Co., 247 F. Supp. 252 (E.D.Pa. 1965).

DRBA OBJECTION. (Not applicable, misleading)

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Plaintiff's 47. Contributory negligence - Not required to anticipate. A seaman is not bound to anticipate a negligent act or omission on the part of the shipowner and a failure to anticipate the negligence of another does not constitute negligence on the part of the plaintiff. Nixon v. Chiarilli, 122 A.2d 710, 385 Pa. 218 (1956); Hogg v. Bessemer & L.E.R. Co., 373 Pa. 632 (1953).

DRBA OBJECTION (misleading, misstatement of law)

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Plaintiff's 48. Contributory negligence - Possible defects. A maritime worker is entitled to assume that the shipowner and its employees have performed those functions necessary to make the equipment with which he is to work and the area where he is to work safe for him and he is not required to be on the alert for possible defects or dangerous conditions of which he has no knowledge. Prosser, Torts, p. 642; Holmes v. Ginter Restaurant Co., 54 F.2d 876 (1st Cir. 1932).

DRBA OBJECTION (misleading, misstatement of law)

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Plaintiff's 49. Contributory negligence - No duty to anticipate negligence. A maritime worker is not bound to anticipate the negligence of someone else or the omission on the part of any employee of the shipowner to perform his job in a safe and non-negligent manner, and the maritime worker is not required to anticipate such negligence on the part of someone else or other employee of the shipowner and the failure to anticipate the negligence of another does not constitute contributory negligence on the part of the plaintiff. Nixon v. Chiarilli, 122 A.2d 710, 385 Pa. 218 (1956); Hogg v. Bessemer & L.E.R. Co., 373 Pa. 632 (1953).

DRBA OBJECTION (misleading, misstatement of law)

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Plaintiff's 50. Contributory negligence - Reasonably safe conditions. Every person is permitted to act on the assumption that he is not exposed or threatened by danger which can come to him as a result of the negligence of another one to whom the duty is owed to maintain and supply equipment and working conditions in a reasonably safe condition is not under any duty or obligation to anticipate that such equipment or working conditions are dangerous or unsafe. Przybyszewski v. Nunes, 168 Pa. Super. 311 (1951).

DRBA OBJECTION (cumulative and irrelevant)

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DRBA PROPOSED POINT NO. 51 51. Reasonably safe place to work. The duty owed to the seaman is to provide a reasonably safe place to work. Brogan, 213 F. Supp. 2d at 436.

(IF NOT ALREADY INCLUDED) Plaintiff's comment: This has already been covered.

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DRBA 52. Reasonably prudent person. The duty is measured by what a reasonably prudent person would anticipate or foresee resulting from the particular circumstances. Brogan, 213 F. Supp. 2d at 436 (quoting from Wilburn v. Maritrans GP, Inc., 139 F.3d 350, 357 (3d Cir. 1998)).

(IF NOT ALREADY INCLUDED) Plaintiff's comment: Already covered.

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DRBA 53. Open and obvious conditions. A shipowner in a Jones Act case has a duty to warn its employees of dangers which are not reasonably known. In other words, shipowners need not warn seamen of dangers that are "open and obvious." Patterson v. Allseas USA, Inc., 2005 WL 1350594 (Slip Opinion, 5th Cir., Docket No. 04-40949, June 8, 2005).

(IF NOT ALREADY INCLUDED) Plaintiff's comment: Already covered.

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DRBA 54. Negligence - reasonable safety. Under the Jones Act, plaintiff must prove that the DRBA, was negligent. The occurrence of an accident, standing alone, does not mean that anyone's negligence caused the accident. You must determine if the operation in question was reasonably safe under the circumstances. The fact that a certain practice has been continued for a long period of time does not mean that it is reasonably safe under all circumstances. However, a practice is not necessarily unsafe or unreasonable merely because it injures someone. 3A Federal Jury Practice & Instructions § 156.20 at 433 (West 5th Ed. 2001).

(IF NOT ALREADY INCLUDED) Plaintiff's comment: Already covered.

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DRBA 55. Negligence - Normal activities. Because a Jones Act employer is not an insurer of its employees' safety at sea, the employer is not liable when an injury arises s