7.10 JONES ACT NEGLIGENCE OR UNSEAWORTHINESS—PLAINTIFF'S COMPLIANCE WITH DEFENDANT'S REQUEST OR DIRECTIONS

A plaintiff may not be found negligent simply because the plaintiff, upon the request or direction of the defendant, worked at a dangerous job, or in a dangerous place, or under dangerous conditions.

Comment

Use this instruction only when the plaintiff's compliance with an employer's request or direction is an issue. Under the "primary duty" doctrine, "a seaman-employee may not recover from his employer for injuries caused by his own failure to perform a duty imposed on him by his employment." Cal. Home Brands, Inc. v. Ferreira, 871 F.2d 830, 836 (9th Cir. 1989); see also N. Queen Inc. v. Kinnear, 298 F.3d 1090, 1095 (9th Cir. 2002).

The primary duty rule is not applicable "where a seaman is injured by a dangerous condition that he did not create and, in the proper exercise of his employment duties, could not have controlled or eliminated." See Bernard v. Maersk Lines, Ltd., 22 F.3d 903, 907 (9th Cir. 1994).

A seaman who follows a supervisor's urgent call to the crew for help cannot be found contributorily negligent. Simenoff v. Hiner, 249 F.3d 883, 890-91 (9th Cir. 2001).