United States Court of Appeals,

Eleventh Circuit.

No. 94-2782.

Eva F. LARUE, his wife, Plaintiff,

v.

JOANN M., a vessel Joann M., Inc., Defendants.

FLORIDA TOWING CORP., Claimant,

Joann M. Limited Partnership, a foreign partnership, the vessel's

owner, Defendant-Third-party Plaintiff-Counter-Defendant-Appellant,

v.

MORAN TOWING OF FLORIDA, INC., Third-party Defendant-CounterClaimant-Appellee.

Jan. 23, 1996.

Appeal from the United States District Court for the Middle

District of Florida. (No. 91-378-CIV-J-16), John H. Moore, II,

Chief Judge.

Before HATCHETT and BIRCH, Circuit Judges, and GODBOLD, Senior

Circuit Judge.

GODBOLD, Senior Circuit Judge:

Plaintiff Edward H. Larue was a seaman employed as deckhand on

a tug owned and operated by Moran Towing. In the Port of

Jacksonville the tug provided towing service to the Joann M. and

assisted the Joann M. to her berth. When the tug's duties were

completed she commenced retrieving from the deck of the Joann M.

the 200 pound tow line that she had provided to the vessel. This

required crewmen of the Joann M. to lift the "eye" of the line off

the bitt on which it was secured on the deck of the Joann M., walk

it to an opening on the side of that vessel, and release it to the

deck of the tug, which lay alongside with its deck approximately 30

feet below the deck of the Joann M. Larue was stationed on the
deck of the tug coiling the tow line as it was released and came

downward. Before the line was completely lowered it was suddenly

released and fell downward from the Joann M., struck Larue on the

neck and shoulders, and injured him.

Larue sued Joann M. Limited Partnership, owner of the vessel,

in Florida state court, alleging negligence based on general

maritime law. JMLP filed a third-party complaint against Moran

claiming contribution and indemnity. Moran counterclaimed against

JMLP for contribution and indemnity, but its indemnity counterclaim

was dismissed by the court.

The case was tried to a jury. Although the third-party

contribution/indemnity claims were in admiralty the parties agreed

that the entire case should be submitted to the jury, which would

determine issues of comparative fault. The jury found that JMLP

was 100% negligent and rendered a verdict for plaintiff against

JMLP for $1,000,000.

JMLP's post-trial motions for judgment as a matter of law and

for a new trial were denied. The court entered judgment on the

verdict against JMLP for the $1,000,000 and a take-nothing judgment

against JMLP on its claims (contribution and indemnity) against

Moran. It granted Moran $19,000 against JMLP, the amount that

Moran had paid Larue in settlement of his potential claims against

Moran. The judgment also granted Moran recovery from JMLP of

maintenance and cure it had paid out.

JMLP appealed, and pending the appeal it settled with Larue.

This left in controversy JMLP's claim against Moran for indemnity

and contribution and Moran's counterclaim against JMLP for
contribution. JMLP does not question the $19,000 award or the

maintenance and cure award.

I. Argument to the jury

 JMLP insists strenuously and at great length that Moran's

counsel deprived it of a fair trial by appealing to the jury to

render a verdict against JMLP because members of its crew involved

in releasing the tow line were foreigners. The initial deficiency

with this argument is that JMLP itself brought the issue of

national origin into the case by suggesting to the jury that the

seamen releasing the line were Filipinos who spoke the Tagalog

dialect of their native country and therefore might have

misunderstood English phrases spoken by the tug crew to mean "let

go the line." Counsel for Moran was entitled to respond that the

standard of care required of a seaman from another country did not

depend upon how well he understood the language of a particular

port that was foreign to him. But the overriding deficiency in

JMLP's argument is that its counsel did not object to any part of

Moran counsel's comments to the jury. Even if any part of those

comments was arguably improper it does not even approach plain

error.

II. Instructions to the jury

 By agreement comparative fault was submitted to the jury.

Plaintiff Larue had made no Jones Act claim against his employer

Moran. JMLP, however, requested the following jury instruction:

In considering the allegation that Moran Towing of

Florida, Inc., or its employees were negligent, you should

take into account that Moran, as plaintiff's employer, owed a

higher duty to plaintiff than the duty of reasonable care owed

by Joann M. Limited Partnership. As plaintiff's employer,

Moran owed plaintiff a high degree of care in providing him a
safe work environment, and had a duty to properly supervise

and instruct plaintiff as to the safe methods by which he

could carry out his orders, or to warn plaintiff of the

potential dangers he faced in completing the task he had been

assigned to perform. Moran is liable for any negligence on

its part in carrying out these duties if that negligence

played any part, even the slightest, in producing any injury

to plaintiff.

R. 3, p. 109. This sought to measure by Jones Act standards JMLP's

third-party claim for contribution from Moran. The court rejected

the proposed instruction and instead instructed that JMLP's

third-party claim against Moran was governed by the same standards

of negligence and causation as governed Larue's negligence claim

against JMLP.

 The Jones Act creates a cause of action for a seaman injured

in the course of his employment by his employer's negligence, and

the parameters of that cause of action are set by the statute. The

general maritime law does not provide for such a claim. The

difference between a general admiralty law claim and a Jones Act

claim is not a mere semantic difference between a suit in admiralty

and a suit at law; the difference is substantive and may determine

whether there is a right to recover at all. Powell v. Offshore

Navigation, Inc., 644 F.2d 1063 (5th Cir.1981). In this case

contribution and indemnity depend upon shared fault between the

seaman's employer and another vessel. In determining how to

ascertain or measure shared fault JMLP sought, as a third party,

the benefit to it of the Jones Act statutory standards that spring

from a relationship between Moran and its seamen that is governed

by a statute not otherwise involved in the case.

Neither party cites to us any case in which the theory raised

by JMLP has been adjudicated. The authorities are unclear in
comparing the underpinnings of Jones Act liability and general

maritime law liability for negligence. Some address the comparison

in terms of differing duties of care, with a higher duty or degree

of care upon the Jones Act employer. Others speak of differing

standards of reasonableness, still others of the Jones Act seaman's

lesser ("featherweight") burden of proving causation, and others of

"slight negligence" as compared with ordinary negligence. In this

case the differing views of the parties arise in the context of a

requested jury instruction and a jury verdict on an issue normally

decided by the court. We leave for another case and another day

the attempt to define with precision the levels—intellectual,

analytical and legal—at which Jones Act liability and general

maritime law liability differ, and their interplay in the

contribution/indemnity context. First, the proposed instruction is

confusing and misleading. If respective duties of care are to be

defined to a jury the definition should be cast for each in

respective but absolute terms. Defining the duty of one in terms

of being higher (or lower) than the duty of the other leads the

jury away from a proper determination for each. Second, in this

case the parties by agreement sent to the jury the task of

apportioning shared fault. Fairly read, the jury verdict is a

finding that JMLP committed one hundred percent of the fault.

Since Moran was determined to be wholly free from fault, the

comparative extent of any fault attributable to it and the

standards of causation relating to that comparative fault simply

have no application. The requested jury instruction issue,

directed to how to measure shared fault, dropped out of the case.
For the same reason the instruction actually given, if erroneous,

was not reversible error.

III. JMLP's claim for indemnity

 The court entered a judgment denying recovery to JMLP for

indemnity based upon alleged breach by Moran of its duty of

workmanlike performance. The jury finding that one hundred percent

of the negligence was committed by JMLP precludes the possibility

that Moran engaged in conduct that "prevented or seriously hampered

[JMLP's] performance of its duty in accordance with the warranty of

workmanlike service." Oglebay Norton Co. v. CSX Corporation, 788

F.2d 361 (6th Cir.1986). This conclusion by the court was not

merely authorized but indeed required by the jury's verdict.

AFFIRMED. Moran's motion to dismiss the appeal and its motion

to award sanctions and costs (other than those normally assessed in

an appeal) are DENIED.