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UNITED STATES COURT OF APPEALS

For the Fifth Circuit

Nos. 95-30250 & 95-30272

CHARLES D. GAUTREAUX

Plaintiff-Appellee

VERSUS

SCURLOCK MARINE, INC.

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

February 28, 1997

Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM,

DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE , EMILIO M. GARZA,

DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.

DUHÉ, Circuit Judge:

Defendant-Appellant Scurlock Marine, Inc. moves this En Banc

Court to consider whether seamen, in Jones Act negligence cases,

are bound to a s tandard of ordinary prudence in the exercise of

care for their own safety, or whether they are bound to a lesser

duty of slight care. On appeal to a panel of this Court, Scurlock

Marine had assigned as error, inter alia

, the district court’s

instructions to the jury charging that seamen were bound only to a1 This factual summary is taken almost verbatim from our panel

opinion in this case. G autreaux v. Scurlock Marine, Inc.

, 84 F.3d

776, 778-79 (5th Cir. 1996).

2 duty of slight care for their own safety. The panel denied

Scurlock Marine relief on this point because the jury instructions

were consistent with what the panel considered was the settled law

of this Circuit. G autreaux v. Scurlock Marine, Inc.

, 84 F.3d 776,

780-81 (5th Cir. 1996). A review of our Jones Act case law

reveals, however, that this “settled law” obtains from doubtful

parentage. We thus now overrule cases contrary to the principles

embraced i n this opinion and AFFIRM in part, VACATE in part and

REMAND for further proceedings as to comparative fault consistent

with our decision today.

BACKGROUND 1

Archie Scurlock, as Pr esident and owner of Scurlock Marine,

Inc., (“Scurlock Marine”) purchased the M/V BROOKE LYNN in May,

1993, and retained Lance Orgeron as her first and permanent

captain. Scurlock hired Charles Gautreaux as the BROOKE LYNN’s

relief captain in October, 1993. Gautreaux was qualified for the

position, having worked as a tanker man since the early 1980s and

having recently earned a United States Coast Guard master’s

license.

The BROOKE LYNN is a standard inland push boat, equipped with

two towing winches on her bow, which are used to secure lines

joining the BROOKE LYNN to the barges in her tow. The starboard

side winch is hydraulic, and the port side winch is electric. Upon

being hired, Gautreaux was taken to the BROOKE LYNN and instructed3

on her operation by Archie Scurlock. Orgeron took Gautreaux on a

tour of the vessel, showing him her layout and familiarizing him

with her equipment. Orgeron showed Gautreaux the manual crank

handle that accompanied the port side electric winch and told him

that it was to be used to override the electric switches on the

winch if they failed. Orgeron explained that, if the winch became

“bound up” and failed to engage by u se of the electric ignition

switch, the manual crank should be attached to the winch motor and

turned a few times to “unbind” the winch, and t hen the electric

ignition switch should be used to try to engage the winch. Neither

Scurlock nor Orgeron told Gautrea ux that if he needed to use the

manual crank handle to unbind the winch, he should not leave it on

the winch motor when attempting to engage the winch by use of the

electric ignition switch.

About four months after he was hired, Gautreaux, serving as

captain of the BROOKE LYNN, relieved the tanker man on duty and

began off loading of the barge in tow. As the barge discharged its

cargo, it began to rise in the water, eventually causing the towing

wires to become taut. Noticing this, Gautreaux attempted to

relieve the tension in the wires by unwinding them from the

winches. He released the starboard wire first, which caused that

side of the BROOKE LYNN to drop and the port side towing wire to

become even tighter. Gautreaux then attempted to release the port

side wire, but the electric winch would not work. He attached the

manual crank to the winch motor, and began turning the crank while

simultaneously pressing the electric ignition switch. When the2 The jury’s award was:

Past and future pain and suffering

and disability $300,000

Past lost wages 24,000

Future lost wages 500,000

Future medical expenses 30,000

Total $854,000

4 motor started, the manual crank handle flew off and s truck

Gautreaux on the right side of his face, crushing his right eye and

inflicting other severe injuries.

Gautr eaux sued Scurlock Marine, alleging that his injuries

were caused by its negligence and the unseaworthiness of the BROOKE

LYNN. Gautreaux’s primary complaint was that Scurlock Marine

failed to properly train him in t he use and operation of the

electric towing winch and its manual crank handle, thereby not

providing him a safe place to work. Scurlock Marine answered and

sought exoneration from or limitation of its liability. After a

two-day trial, the jury returned a verdict in favor of Gautreaux on

his Jones Act negligenc e claim, but found the BROOKE LYNN

seaworthy. The jury apportioned fault 95% to Scurlock Marine and

5% to Gautreaux and awarded a total of $854,000 in damages. 2

The district court entered judgment for Gautreaux for

$811,300. By separate order, the district court denied Scurlock

Marine’s petition for limita tion of liability. Scurlock Marine

moved in the alternative for judgment as a matter of law, for new

trial, or to alter, amend, or remit the judgment. The district

court denied these motions, conditioning its denial of Scurlock

Marine’s motion for new trial on Gautreaux’s acceptan ce of a3 The district court found the jury’s award of $500,000 for

lost future wages excessive and against the great weight of the

evidenc e, insofar as the award was premised on Gautreaux’s

inability to return to minimum-wage employment during the first two

years after the accident. Accordingly, the district court

con ditioned denial of Scurlock Marine’s new trial motion on this

element of damages on Gautreaux’s acceptance of an award of

$400,625.

4 On June 7, 1995, the distri ct court further amended its

judgment, discovering that it had failed to re duce the remitted

amount of lost future wages by Gautreaux’s percentage of fault.

5 remittitur. 3 Gautreaux accepted the remittitur, and the district

court entered an amended judgment for $736,925 for Gautreaux. 4

On appeal to this Court, Scurlock Marine argued, inter alia

,

that in its instructions regarding contributory neg ligence, the

district court erred by charging the jury that a Jones Act seaman

need exercise only “slight care” for his own safety. Scurlock

Marine maintained that the standard to which Gautreaux, and all

seamen, should be held is that of a reasonably prudent person

exercisi ng ordinary or due care under like circumstances.

Accordingly, Scurlock Marine urged this Court to abandon the slight

care standard in Jones Act cases, contending the standard “has

evolved from this Court’s blind adherence to an incorrect statement

of the law.” G autreaux

, 84 F.3d at 781 n.7. The panel

acknowledged that the viability of the slig ht care standard has

recently been questioned but considered it the settled law of this

Circuit. It thus refused to hold that the district court erred in

giving the “slight care” instruction, noting that “settled law of

this Circuit, such as the slight care standard in a Jones Act case,

can only be changed, absent action by the United States Supreme5 The drafters, not s urprisingly, apparently relied upon our

explicit st atement in B rooks v. Great Lakes Dredge-Dock Co.

, 754

F.2d 536 (5th Cir. 1984), modified on other grounds , 754 F.2d 539

(5th Cir. 1985), to draft this charge.

6 Court, by this Court sitting en banc.” I d. The panel accordingly

affirmed the district court’s judgment and this en banc rehearing

followed.

STANDARD OF REVIEW

While trial courts are accorded substantial latitude in

formulating jury instructions, “we must reverse when we have a

substantial doubt that the jury has been fairly guided in its

deliberations.” B ode v. Pan American World Airways, Inc.

, 786 F.2d

669, 672 (5th Cir. 1986) (internal quotat ions and citation

omitted); see also Mooney v. Aramco Servs. Co.

, 54 F.3d 1207, 1216

(5th Cir. 1995).

DISCUSSION

The district court’s instruction, consistent with the Fifth

Circuit’s P attern Jury Instructions, 5 informed the jurors that

“[i]n determining whether the plaintiff was contributorily

negligent, you must bear in mind that a Jones Act seaman does not

have a duty to use ordinary care under the circumstances for his

own safety. A Jones Act seaman is obliged to exercise only slight

care under the circumstances for his own safety at the time of the

accident.” Scurlock Marine asserts that this charge is defective,

maintaining that historically, Jones Act seamen had been expressly

bound to a standard of ordinary prudence under like circumstances.

In support of its contention, Scurlock Marine cites early Supreme7

Court opinions to illustrate that the phrase “slight negligence” or

“slight care” stood not for the duty of care owed by employers and

employees, as the phrase is now understood, but for that quantum of

evidence necessary to sustain a jury verdict on review. The duty

of care owed by both parties, Scurlock Marine contends, had always

been, and should remain, that of the reasonable person.

We acknowledge there is much confusion in this Circuit as to

the proper standard of care by which juries should measure a

plaintiff’s duty under the Jones Act to protect himself. While

some courts have instructed juries that a plaintiff’s duty is only

one of slight care, as did the district court in the instant case,

others charge that the duty is one of ordinary prudence.

Admittedly, this Court has been less than clear in its articulation

of the proper standard of care to which seamen are bound. We

granted this en banc rehearing to eliminate the uncertainty and to

consider returning, as Scurlock Marine requests, to the reasonable

person standard.

A. The Development of the Slight Care, or Slight Neglige nce,

Standard

The language chosen by Congress to determine the

responsibility of both employers and employees under the Jones Act

is simple and direct. Nothing in the statute indicates that

Congress intended to hold Jones Act employees to a standard of

sli ght duty of care in the exercise of concern for their own

safety. Below, we explain the statutory scheme and Supreme Court

precedent interpreting it before we illustrate our departure from

their clear mandates.8

1. The Statutory Scheme and Supreme Court Precedent

Under the Jones Act, seam en are afforded rights parallel to

those of railway employees under the Federal Employers’ Liability

Act (“FELA”). 46 U.S.C. § 688. Section 51 of the FELA provides,

in pertinent part, that “[e]very common carrier by railroad . . .

shall be liable in damages

. . . for such injury or death resulting

in whole or in part from the negligence of any of the officers,

agents, or employees of such carrier.” 45 U.S.C. § 51 (emphasis

added). A seaman is entitled to recovery under the Jones Act,

therefore, if his employer’s negligence is the cause, in whole or

in part, of his injury. In their earlier articulations of § 51

liability, courts had replaced the phrase “in whole or in part”

with the adjective “slightest.” In Rogers v. Missouri Pacific R.

Co.

, 352 U. S. 500, 506 (1957), the Supreme Court used the term

“slightest” to describe the reduced standard of causation between

the employer’s negligence and the employee’s injury in FELA § 51

cases. In Ferguson v. Moore-McCormack Lines, Inc. , 352 U.S. 521,

523 (1957), the Court applied the same standard to a Jones Act

case, writing, “‘Under this statute the test of a jury case is

simply whether the proofs justify with reason the conclusion that

employer negligence played any part, even the slightest, in

producing the injury or death for which damages a re sought.’”

(quoting Rogers , 352 U.S. at 506).

Nothing in these cases, then, supports the proposition that

the duty of care owed is slight. Rather, the phrase “in whole or

in part” as set forth in the stat ute, or, as it has come to be9

known, “slightest,” modifies only the causation prong of the

inquiry. The phrase does not also modify the word “negligence.”

The duty of care owed, therefore, under normal rules of statutory

construction, retains the usual and familiar definition of ordinary

prudence. See Texas Food Indus. Assoc. v. United States Dept. of

Agriculture

, 81 F .3d 578, 582 (5th Cir. 1996) (stating it is a

“cardinal canon of statutory construction

. . . that [in

interpreting a statute,] the words of a statute will be given their

plain meaning”).

Despite the clarity of the Supreme Court’s decisions, the word

“slightest,” used initially to refer to the quantum of evidence of

an employer’s breach of duty necessary to sustain a jury verdict,

soon took on a different referent. Once the Supreme Court had

reduced the statutory language “in whole or in part” to “any part,

even the slightest,” it was not long before our court further

reduced the phrase “any part, even the slightest” to a shorthand

expression of “slight negligence” or “slight evid ence of

ne gligence.” Thereafter we used the phrase “slight negligence”

uncritically. Justice Frankfurter’s comment on the (mis)use of the

phrase “assumption of the risk” in FELA actions aptly applies to

our discussion today: “A phrase begins life as a literary

express ion; its felicity leads to its lazy repetition; and

repetition soon establishes it as a legal formula,

undiscriminatingly used to express different and sometimes

contradictory ideas.” T iller v. Atlantic Coast Line R. Co.

, 318

U.S. 54, 68 (1943) (Frankfurter, J., concurring). The same holds10

true of our use of the phrase “slight negligence” or “slight care”

in Jones Act negligence cases.

Guided by the Supreme Court, we had initially employed the

phrase “slight negligence” as a s horthand expression for the

standard by which we measure, in our review of a jury verdict, the

sufficiency of evidence establishing a causal link between an

employer’s negligence and a seaman’s injury. Significantly, an

employer’s duty of care always remained that of ordinary

negligence. Soon, however, we began using the phrase “slight

negligence” to refer not only to the sufficiency of the evidence

inquiry but also to that duty of care Jones Act employers owed to

their employees. A plaintiff, therefore, could now reach the jury

not only with “slight evidence” of his employer’s negligence, but

also with slight ev idence of his employer having been only

“slightly negligent.” Once we had characterized the phrase “slight

negligence” as shorthand to depic t a duty of care owed by an

employer to its employee, it was not long before we also used the

phrase to represent the plaintiff’s duty of care to protect himself

from work-related injuries. We did so by rephrasing “slight

negligence” to “slight care.”

Historically, then, Jones Act employers and seam en were

expressly bound to a standard of ordinary prudence; when the phrase

“slight negligence” came to stand for the d uty of care owed by

employers and employees, however, employers were understood to be

held to a higher degree of personal responsibility as to their

employees, and plaintiff-seamen were understoo d to be held to a11

lower degree of personal responsibility for themselves. We hold

that the historical interpretation alway s should have been, and

should now be, applied in this Circuit. We offer the following

survey of our case law, however, to illustrate just how we devolved

from the Supreme Court’s pronouncements in Rogers and Ferguson to

our “settled law” today.

2. Our Departure from the Standard of Reasonable Care

In Page v. St. Louis Southwestern Railway Co. , 349 F.2d 820,

823 (5th Cir. 1965), we kept the standards for determining duty of

care and causation distinct when we clarified that in FELA cases,

the traditional standard for determining negligence applied:

As to both attack or defense, there are two common

elements, (1) negligence, i. e., the standard of

care, and (2) causation, i. e., the relation of the

negligence to the injury. So far as negligence is

concerned, that standard is the same--ordinary

prudence--for both Employee and Railroad alike.

In Boeing Co. v. Shipman , 411 F.2d 365 (5th Cir. 1969) (en banc),

however, the standards became more nebulo us. We misinterpreted

Rogers ’s “any part, even the slightest” language to refer not to

the evidence necessary to support a jury verdict, but to an

employer’s duty of care. We concluded that “[s]light negligence,

necessary to support an [sic] FELA action, is defined as ‘a failure

to exercise great care,’ and that burden of proof, obviously, is

much less than the burden required to sustain recovery in ordinary

neg ligence actions.” I d. at 371. Thus, in B oeing

, we broadened

the scope of a FELA--and by implication Jones Act--action insofar

as we expos ed employers to a higher degree of care and thus more

liability t han they otherwise would be exposed to in ordinary12

negligence actions.

In the following years, we vacillated considerabl y in our

pronunciations of the proper standard of care. In P erry v. Morgan

Guaranty Trust Co. of New York , 528 F.2d 1378 (5th Cir. 1976), we

did not follow Boeing ’s articu lation of an employer’s duty,

applying instead the traditional standard of that of a reasonable

person. In P erry

, the defendant appealed the district court’s

judgment for the plaintiff, maintaining that the court’s finding of

Jones Act liability was unsupported by the evidence. We

acknowledged that the amount of evidence required to support a jury

verdict was slight, and held that an employer was guided by a duty

of re asonable care. P erry

, a case involving solely the issue of

sufficiency of the evidence, was therefore properly decided under

the Supreme Court’s decisions in Rogers and Ferguson

. In D avis v.

Hill Engineering, Inc.

, 549 F.2d 314 (5th Cir. 1977), overruled on

other grounds

, 688 F.2d 280 (5th Cir. 1982), however, we regressed.

Although we held that a find ing of Jones Act liability could be

sustained upon evidence of only “the slightest negligence,” in the

very next sentence, we affirmed the district court’s use of the

reasonable person standard in determining Jones Act liability. I d.

at 329. Interestingly, we cited S anford Bros. Boats, Inc. v.

Vidri ne , 412 F.2d 958 (5th Cir. 1969) and P erry to support our

holding that evidence of only the slightest negligence would

suffice. I d. As noted, however, P erry

, dealt solely with the

issue of causation and did not adopt Boeing ’s “slight negligence”

standard. Moreover, S anford Bros.

, which has often been cited13

erroneously as the progenitor of our “slight negligence” standard,

neither appli ed the “slight negligence” standard of care nor

m entioned it in the course of its opinion, as the case concerned

only the causation prong of the inquiry. That we mis-cited these

cases, which both dealt solely with whether the evidence of the

employer’s negligence supported the jury verdict of Jones Act

liability, de m onstrates our early predilection to confuse the

standard for sufficiency of the evidence and the standard of care

a Jones Act employer owes to his employees.

Later, in Ivy v. Security Barge Lines, Inc.

, 585 F.2d 732, 741

(5th Cir. 1978), modified on other grounds

, 606 F.2d 524 (5th Cir.

1979) (en banc), cert. denied

, 446 U.S. 956 (1980), we reverted

back to our statement in Perry and held that a Jones Act employer

is negligent “only if he fails to use reasonable care to maintain

a reasonably safe pl ace to work.” We appear to have switched

courses again, howeve r, in A llen v. Seacoast Products, Inc.

, 623

F.2d 355, 361 (5th Cir. 1980), in which we held th at “[t]he

re medial nature of the Jones Act and its imposition of a higher

standard of care on employers results in liability upon the showing

of only ‘slight negligence.’” (citing Davis v. Hill Engineering,

Inc.

, 549 F.2d 314, 329 (5th Cir. 1977)). Thereafter, we

backtracked from this position to other prior one when we

explicitly stated that “the same general ne gligence (‘ordinary

prudence’) and causation standards apply to both employer and

employee in Federal Emplo yers’ Liability Act (and, by extension,

Jones Act) cases.” Gavagan v. United States , 955 F.2d 1016, 101914

n.7 (5th Cir. 1992).

Our decisions imputing to Jones Act employers a higher duty of

care than that imposed on all other employers stretch the Supreme

Court’s decisions in Rogers and Ferguson quite far. Our decisions

discussing an employee’s duty of care stretch farther. In Spinks

v. Chevron Oil Co

. , 507 F.2d 216 (5th Cir. 1975), c larified on

other grounds

, 546 F.2d 675 (5th Cir. 1977), we not only reaffirmed

the high standard of c are to which we had bound Jones Act

employers, but we also announced that a seaman-employee owes only

a slight duty to protect himself. We stated, “The duty owed by an

employer to a seaman is so broad that it encompasses the duty to

provide a safe place to work. By comparison, the seaman’s duty to

protect himself . . . is slight.” Id. at 223 (internal citations

omitted).

Spi nks , however, was not the definitive word on the issue.

Just as we had done for the standard of care to be applied to

maritime employers, we vacillated--often in the same opinion--as to

th e duty a seaman owed to look after his own safety, describing

this duty as one of both reasonableness a nd slight car e. For

example, in Bobb v. Modern Products, Inc.

, 648 F.2d 1051, 1057 (5th

Cir. 1981), we held that “the seaman has some duty to use

reasonable care, even though that duty is slight.” Similarly, in

Ceja v. Mike Hooks, Inc. , 690 F.2d 1191, 1193 (5th Cir. 1982), we

wrote:

In contrast to the broad duty imposed upon a vessel

owner to supply a safe work place, the seaman’s duty

to protect himself is slight. Although the seaman

has a dut y to use reasonable care, this duty is15 tempered by the realities of maritime employment

‘which have b een deemed . . . to place large

responsibility for his safety on the owner.’

(citations omitted). One year later, in T hezan v. Maritime

Overseas Corp.

, 708 F.2d 175 (5th Cir. 1983), cert. denied

, 464

U.S. 1050 (1984), we relied on B obb to define a seaman’s duty of

care, but neglected to include Bobb ’s element of “reasonableness”

in our definition. We held that “[w]hile the seaman’s duty to

protect himself is slight, the duty does exist.” I d

. at 180.

Within the same paragraph, however, we did point out that although

a seaman generally owes no duty to find the safest way to perform

his work, “where it is shown that there existed a safe alternative

available of which he knew or should have known

, a seaman’s course

of action can be properly considered in determining whether he was

negligent.” I d. at 181 (emphasis added). Our design in T hezan may

have been to continue holding seamen to a standard of ordinary

prudence, but we failed to clearly articulate that intention. S ee

also Shipman v. Central Gulf Lines, Inc.

, 709 F.2d 383, 3 86 (5th

Cir. 1983) (perpetuating the ambiguity).

We were quite explicit, however, in Brooks v. Great Lakes

Dredge-Dock Co.

, 754 F.2d 536 (5th Cir. 1984), modified on other

grounds , 754 F.2d 539 (5th Cir. 1985), when we expressly rejected

any definition of a seaman’s duty of care that sounded in ordinary

prudence. We held that the district court erred by instructing the

jury that the injured party had a duty of ordinary care for his own

safety and emphasized, somewhat erroneously, that “[t]his court

. . . has consistently held that under the Jones Act, a seaman’s16

duty to protect himself is not ordinary care, but slight care.”

Id. at 538. B rooks ’s explicit proclamation did not last. Our

c lear waters were made murky in P ickle v. International Oilfield

Divers, Inc.

, 791 F.2d 1237, 1240 (5th Cir. 1986), cert. denied

,

479 U.S. 1059 (1987), when we reinserted th e element of

“reasonableness” in our definition of the standard to which seamen

are bound and held that the plaintiff’s “duty to protect himself is

only a slight duty to use reasonable care.” Again, we raise

Gavagan to illustrate that, in 1992, we came full circle from where

we began in Page when we stated in rather explicit terms that the

standards of reasonable care guide the duties of both employers and

employees under the Jones Act. Gavagan , 955 F.2d at 1019 n.7.

B. Ordinary Prudence

The above survey of our decisions shows the confused start and

the diverted path leading to the “settled law” in this Circuit that

a Jones Act employer is bound by a greater-than-ordinary standard

of care towards its employees and that a seaman owes only a slight

duty to look after his own safety. We agree with the Third Circuit

that nothing in the text or structure of the FELA-Jones Act

legislation suggests that the standard of care to be attributed to

either an employer or an employee is anything differe nt than

ordinary prudence under the circumstances. F ashauer v. New Jersey

Transit Rail Operations, Inc. , 57 F.3d 1269, 1283 (3d Cir. 1995).

In addressing a seaman’s duty to act with reasonable care, the

Third Circuit reasoned:

By its very terms, the FELA pro vides that ‘the

damages shall be diminished by th e jury in17 proportion to the amount of negligence attributable

to such employee.’ 45 U.S.C. § 53. The statute

does not distinguish between degrees of negligence;

the statute does not say that the plaintiff only has

a slight duty of care. Under the statute, a

plaintiff’s recovery is reduced to the exte nt that

he is negligent and that such negligence is

responsible for t he injury. In such a situation,

one must assume that Congress intended its words to

mean what they ordinarily are taken to mean--a

person is negligent if he or she fails to act as an

ordinarily prudent person would act in similar

cir cumstances. Such a reading also is in accord

with the FELA’s pure comparative negligence scheme;

and to adopt [plaintiff’s] argument wou l d be to

abandon the clear dictate of the statute in favor of

a policy decision to favor employees over employers.

Id. ; see also Tiller v. Atlantic Coast Line R. Co.

, 318 U.S. 54, 67

(1943) (holding that “the employer’s liability is to be determined

under the general rule which defines negligence as the lack of due

care under the circumstances; or the failure to do what a

reasonable and prudent man would ordinarily have done under the

circumstances of the situat ion”). Our sister circuits have

similarly held. See

, e.g.

, Smith v. Tow Boat Serv. & Management,

Inc.

, 66 F.3d 336 (9th Cir. 1995) (unpublished) (rejecting “slight

care” standard); see also Kar velis v. Constellation Lines, S.A.

,

806 F.2d 49, 52-53 & n.2 (2d Cir. 1986), cert. denied

, 481 U.S.

1015 (1987), (approving jury instruction informing that both

employer and employee under Jones Act are charged with duty of

reasonable care under the circumstances); Ybarra v. Burlington N.,

Inc.

, 689 F.2d 147, 150 (8th Cir. 1982) (approving jury instruction

that railroad has duty to exercise reasonable care for protection

of employees); Joyce v. Atlantic Richfield Co. , 651 F.2d 676, 681

(10th Cir. 1981) (defining negligence as failure to use reasonable18

care).

We find further support for our position in Supreme Court

precedent. In U rie v. Thom pson , 337 U.S. 163, 174 (1949), the

Court emphasized that the term “negligence” is to be defined “by

the common law principles as established and applied in the federal

courts.” (internal quotations and citation omitted). Although the

Court’s discussion refers specifical ly to § 51 “negligence,” it

would defy logic not to extend this reasoning to the term as used

in § 53, which discusses a plaintiff’s contribu tory negligence.

See also Consolidated Rail Corp. v. Gottshall

, 114 S.Ct. 2396, 2404

(1994) (holding that common law p rinciples are entitled to great

weight in FELA analysis unless expressly rejected in text of

statute).

A seaman, then, is obligated under the Jones Act to act with

ordinary prudence under the circumstances. The circumstances of a

seaman’s employment include not only his reliance on his employer

to provide a safe work environment but also his own experience,

training, or education. The reasonable person standard, therefore,

and a Jones Act negligence action becomes one of the reasonable

seaman in lik e circumstances. To hold otherwise would unjustly

reward unreasonable conduct and would fault seamen only for their

gross negligence, which was not the contemplation of Congress. S ee

Robert Force, Allocation of Risk and Standard of Care Under the

Jones Act: “Slight Negligence,” “Slight Care”?, 25 J. Mar. L. &

Com. 1, 31 (1994).

By ascribing to seamen a slight duty of care to protect19

themselves from the negligence of their employers, Spinks and its

progeny, specifically Brooks

, are repugnant to the principles we

espouse today and are therefore overruled. Moreover, by

attributing to Jones Act employers a higher duty of care than that

required under ordinary negligence, Allen and its progeny repudiate

the reasonable person standard and are also overruled.

CONCLUSION

In light of the foregoing discussion abou t the appropriate

standards of care that should guide employers and employees under

the Jones Act, we hold that the jurors in the instant case were

improperly instructed as to Gautreaux’s duty to exercise care for

his own safety. We, however, express no opinion as to the proper

apportionment of fault between the two part ies. We accordingly

AFFIRM the district court’s determination of the amount of damages,

VACATE the district c ourt’s judgment as to comparative fault and

REMAND for proceedings to determine the comparative fault (if any)

of the plaintiff and apportionment of the damages consistent with

this opinion. In all other respects, we reinstate the panel’s

opinion.

AFFIRMED IN PART, VACATED IN PART, and REMANDED.