Damages may be recovered in seaman's action against shipowner under 46 USCS Appx § 688 for personal injuries only when negligence is proven. Jacob v New York City (1942) 315 US 752, 86 L Ed 1166, 62 S Ct 854; De Zon v American President Lines, Ltd. (1943) 318 US 660, 87 L Ed 1065, 63 S Ct 814, reh den 319 US 780, 87 L Ed 1725, 63 S Ct 1025.
Recovery may be had for injuries due to negligence of one in authority over injured seaman or to any defective condition of vessel. Stevens v R. O'Brien & Co. (1933, CA1 Mass) 62 F2d 632.
Federal Employers' Liability Act (45 USCS § § 51 et seq), incorporated into 46 USCS Appx § 688, makes shipowner liable for injury resulting in whole or in part from negligence of any officer, agent or employee of shipowner or by reason of any defect or insufficiency, due to its negligence, in its cars, appliances, machinery or other equipment. Lopoczyk v Chester A. Poling, Inc. (1945, CA2 NY) 152 F2d 457, 1946 AMC 40.
Mere fact that seaman has suffered injury does not per se call for liability under 46 USCS Appx § 688, if employer negligence has not been found to exist. Carver v Partlow Corp. (1965, CA5 Fla) 344 F2d 932.
Rule that nothing in Jones Act suggests standard of care to be attributed to either employer or employee is anything different than ordinary prudence under circumstances, must be given retroactive effect to all cases open on direct review when rule was announced by court. Crawford v Falcon Drilling Co. (1997, CA5 La) 131 F3d 1120.
Provisions of 46 USCS Appx § 688 apply only to maritime torts. Mullen v Eastern Transp. Co. (1938, DC Pa) 25 F Supp 62.
Actions under 46 USCS Appx § 688 are limited to seaman's actions on navigable waters and do not extend to nonmaritime torts. Oliver v Calmar S.S. Co. (1940, DC Pa) 33 F Supp 356, 1940 AMC 411.
Vessel owner sued under 46 USCS Appx § 688 is not liable as insurer of injured seaman's safety but is liable only for negligence. Hopson v Gulf Oil Corp. (1951) 150 Tex 1, 237 SW2d 352.
Right of recovery under 46 USCS Appx § 688 depends on negligence in one or both of two particulars: (1) that of any officer, agent or employee of carrier; (2) by reason of defect or insufficiency of equipment. Mullen v Fitz Simons & Connell Dredge & Dock Co. (1948, CA7 Ill) 172 F2d 601, cert den 337 US 959, 93 L Ed 1758, 69 S Ct 1534.
Under 46 USCS Appx § 688, there must be (1) negligent act by defendant, and (2) negligence must have contributed to injury. West v Eastern Transp. Co. (1950, CA4 Va) 179 F2d 478, cert den 340 US 810, 95 L Ed 595, 71 S Ct 37.
Claim under 46 USCS Appx § 688 requires finding both of negligent breach of duty and proximate cause. Myles v Quinn Menhaden Fisheries, Inc. (1962, CA5 La) 302 F2d 146.
For plaintiff to succeed in suit under 46 USCS Appx § 688, he must establish by fair preponderance of evidence that defendant was negligent and that such negligence was proximate cause, in whole or in part, of his injuries. Oliveras v United States Lines Co. (1963, CA2 NY) 318 F2d 890.
Claim under Jones Act requires finding both of negligent breach of duty and proximate cause. Complaint of Chevron Transport Corp. (1985, MD Fla) 613 F Supp 1428.
Negligent failure to comply with absolute duty to furnish seaworthy vessel reasonably fit for intended voyage, which negligent failure proximately causes injury to seaman, is actionable under 46 USCS Appx § 688. Cortes v Baltimore Insular Line, Inc. (1932) 287 US 367, 77 L Ed 368, 53 S Ct 173.
It is shipowner's duty to provide crew of vessel with reasonably safe place in which to work and failure to do so gives rise to cause of action under 46 USCS Appx § 688. Mahnich v Southern S.S. Co. (1944) 321 US 96, 88 L Ed 561, 64 S Ct 455.
Vessel has duty to provide safe working place for members of its crew. Johnson v Griffiths S.S. Co. (1945, CA9 Wash) 150 F2d 224, 1945 AMC 887.
Ship must provide safe place to work to seaman, or one who performs tasks traditionally performed by ship's crew; that duty encompasses reasonably safe means of boarding, and departing from, vessel, and failure to discharge it constitutes negligence. Southard v Independent Towing Co. (1971, CA3 Pa) 453 F2d 1115.
It is familiar and well established rule that shipowner has obligation to furnish seamen and longshoremen performing seamen's work, seaworthy vessel, including seaworthy appurtenances and equipment, as well as safe place to work, obligation which extends to area where loading and unloading operations are performed. Shephard v S/S Nopal Progress (1974, CA5 La) 497 F2d 963, reh den (CA5 La) 502 F2d 1167 and reh den (CA5 La) 502 F2d 1168 and cert den 420 US 937, 43 L Ed 2d 414, 95 S Ct 1147.
Shipowner has duty to every seaman employed onboard vessel to furnish vessel with appurtenances that are reasonably fit for their intended use; duty includes maintaining ship's equipment in proper operating condition, and failure of piece of vessel equipment under proper and expected use is sufficient to establish unseaworthiness. Lee v Pacific Far East Line, Inc. (1977, CA9 Cal) 566 F2d 65.
Vessel owner's duty to prevent unseaworthy conditions is absolute, continuing, and non-delegable; lack of knowledge of or opportunity to correct such conditions does not mitigate vessel owner's duty. Allen v Seacoast Products, Inc. (1980, CA5 La) 623 F2d 355, 6 Fed Rules Evid Serv 536 (disagreed with by multiple cases as stated in Nix v Kansas City S. R. Co. (CA5 Tex) 776 F2d 510).
Employer must have notice and opportunity to correct unsafe condition before liability will attach. Perkins v Am. Elec. Power Fuel Supply, Inc. (2001, CA6 Ohio) 246 F3d 593, 2001 FED App 101P, reh den, reh, en banc, den (2001, CA6) 2001 US App LEXIS 11223.
Vessel owner is required to take affirmative action when prevailing conditions require such to prevent accidental injury to members of crew, even though ship and its appurtenances are ordinarily considered to be reasonably safe; failure to exert such diligence as circumstances require can result in unseaworthiness, actionable negligence under 46 USCS Appx § 688, or both. Trahan v Superior Oil Co. (1962, WD La) 204 F Supp 627, affd (CA5 La) 322 F2d 234, 8 ALR3d 497, 1964 AMC 100.
In case under 46 USCS Appx § 688, test of reasonable safety varies with prevailing conditions, and test of order to seaman is whether such order is one which reasonably prudent superior would give in all circumstances. Matson Navigation Co. v Hansen (1942, CA9 Cal) 132 F2d 487.
Nature of business and particular dangers involved determine amount of care required in particular case, whether on land or sea; test or standard to be adopted in determining whether care used is proper and commensurate with danger is supposed conduct under circumstances of reasonable and prudent man; failure to use care that reasonable and prudent man would use under like circumstances is usual concept of negligence and standard of care recognized under maritime law under 46 USCS Appx § 688 and under Federal Employers' Liability Act (45 USCS § § 51 et seq.). Roberts v United Fisheries Vessels Co. (1944, CA1 Mass) 141 F2d 288, cert den 323 US 753, 89 L Ed 603, 65 S Ct 81.
Negligence as applied in 46 USCS Appx § 688 must be given liberal construction and includes any knowing or careless breach of any obligation which employer owes to seamen. Koehler v Presque-Isle Transp. Co. (1944, CA2 NY) 141 F2d 490, 1944 AMC 432, cert den 322 US 764, 88 L Ed 1591, 64 S Ct 1288; Catania v Halcyon S.S. Co. (1975, 2d Dist) 44 Cal App 3d 348, 118 Cal Rptr 513.
Under Jones Act (46 USCS Appx § 688), vessel owner is deemed negligent if he fails to exercise reasonable care to maintain reasonably safe work environment. Ober v Penrod Drilling Co. (1984, CA5 La) 726 F2d 1035.
Evidence of "slightest" negligence is sufficient to sustain finding of Jones Act liability, and burden on plaintiff for showing causation is "featherweight." Johnson v Offshore Express, Inc. (1988, CA5 La) 845 F2d 1347, cert den (US) 109 S Ct 497.
Negligence within meaning of 46 USCS Appx § 688 is failure to exercise degree of care which ordinary prudent person would use under circumstances in discharging duty he owes to those who work on vessel. Clements v Chotin Transp., Inc. (1980, MD La) 496 F Supp 163.
Standard of liability and test of negligence and causation are same for both 46 USCS Appx § 688 and Federal Employers' Liability Act (45 USCS § § 51 et seq.). Catania v Halcyon S.S. Co. (1975, 3d Dist) 44 Cal App 3d 348, 118 Cal Rptr 513.
In action for death of seaman who jumped into sea while in employ of defendant on fishing trip on defendant's vessel, issue of defendant's liability must be decided upon facts as they presented themselves to master and crew of fishing vessel, and standard of care required was that of reasonably prudent man under circumstances, seeing what these men saw and or ought to have seen of appearance and actions of deceased. Bugden v Trawler Cambridge, Inc. (1946) 319 Mass 315, 65 NE2d 533.
Standard of care imposed upon defendant in action under 46 USCS Appx § 688 is that of reasonable or ordinary care, having regard to circumstances; measure of shipowner's duty in this respect does not vary, but degree of care must be adjusted to risk involved. Carlson v Wheeler-Hallock Co. (1943) 171 Or 349, 137 P2d 1001.
Test of negligence of master is whether he did that which he ought not to have done or failed to do that which he should have done, and his act of commission or omission proximately contributed to accident. Wood Towing Corp. v West (1943) 181 Va 151, 23 SE2d 789.
Standard of care imposed by 46 USCS Appx § 688 is duty to provide seaworthy vessel which owner impliedly promised to his seamen in their contract of employment. Brown v Intercoastal Fisheries, Inc. (1949) 34 Wash 2d 48, 207 P2d 1205.
Obligation of shipowner to his seamen is substantially greater than that of ordinary employer to his employees. Koehler v Presque-Isle Transp. Co. (1944, CA2 NY) 141 F2d 490, 1944 AMC 432, cert den 322 US 764, 88 L Ed 1591, 64 S Ct 1288.
Operator of vessel is required to display higher standard of care than is required of employer on shore with regard to employees, but under 46 USCS Appx § 688 claimant must show negligence on part of employer. Esta v Persohn (1950, La App, Orleans) 47 So 2d 64.
Higher degree of care is required of shipowner than is required of employers of servants for work on shore. Taber v Cities Service Oil Co. (1950) 198 Misc 332, 97 NYS2d 891.
46 USCS Appx § 688 employer has nondelegable duty to furnish plaintiff with safe place in which to work and failure to do so constitutes negligence. Wilkins v P.M.B. Systems Engineering, Inc. (1982, ED Tex) 553 F Supp 201, vacated on other grounds (CA5 Tex) 741 F2d 795.
Shipowner has nondelegable duty to furnish seaman safe place in which to work, and higher degree of care is required of him than is required of employers of servants for work on shore. Taber v Cities Service Oil Co. (1950) 198 Misc 332, 97 NYS2d 891.
Duties imposed by 45 USCS § § 51 et seq., as extended to seamen by 46 USCS Appx § 688, are absolutely nondelegable. Greenhaw v Pacific-Atlantic S.S. Co. (1950) 190 Or 182, 224 P2d 918.
Shipowner need only provide reasonably safe place for seaman to work and is not insurer of safety. Kahyis v Arundel Corp. (1933, DC Md) 3 F Supp 492.
"Safe place to work" rule is subject to limitation that master is not required to eliminate all danger attendant upon work that is inherently dangerous. The Ellenor (1941, DC Fla) 39 F Supp 576, 1941 AMC 1195, affd (CA5 Fla) 125 F2d 774, 1942 AMC 245.
Under 46 USCS Appx § 688, employer is not held absolutely responsible to furnish employees with safe place to work but is only bound to exercise reasonable care to see that place is reasonably safe. Vojkovich v Ursich (1942) 49 Cal App 2d 268, 121 P2d 803, 1942 AMC 299.
Shipowner is not insurer of safety of ship's seamen, however, seamen have long been considered wards of court and it is clear that duty owed them reaches high standard. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.
Shipowner is not insurer of safety of ship's seamen, but has duty of providing reasonably safe place to work, and reasonably safe method to do work; ship owner is not under duty to supply very best tools or very best method to accomplish particular task. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.
Where master had opportunity to make repairs in several ports in which vessel stopped, master had duty to see that vessel, which had become unsafe during voyage, was put in seaworthy condition and to see that any repair order was carried out. Walker v Lykes Bros. S.S. Co. (1952, CA2 NY) 193 F2d 772.
Under 46 USCS Appx § 688, vessel owner is deemed negligent if he fails to exercise reasonable care to maintain reasonably safe work environment; fact that employer permitted lead tongs to swing recklessly, either by driller's failure to use back-up tongs in violation of employer's safety rule or by driller's application of too much torque, is sufficient to constitute breach of duty to furnish plaintiff with reasonably safe place to work within § 688 standards. Ober v Penrod Drilling Co. (1982, CA5 La) 694 F2d 68, vacated on other grounds, superseded on other grounds (CA5 La) 726 F2d 1035.
In causing study to be made of noise levels aboard vessel and in providing individual hearing protection and insulation in engine room of vessel which protected seamen from permanent hearing loss, employers performed their duty to provide their seamen with reasonably safe place to work; employers do not have absolute duty to eliminate all excessive noise aboard vessel, nor even absolute duty to completely insulate their seamen from all excessive noise although employers do have duty to protect their seamen against permanent hearing loss. Hicks v Crowley Maritime Corp. (1982, SD Tex) 538 F Supp 285, affd without op (CA5 Tex) 707 F2d 514 and affd without op (CA5 Tex) 707 F2d 514 and affd without op (CA5 Tex) 707 F2d 514.
Employer who elects not to send engineer or mechanic with its equipment on job is at fault for not instructing personnel with respect to repairing of particular equipment to be used on job; where job requires use of high-pressure hose and employer does not send out its own engineer familiar with intricacies of compressor operations and repairs, where it is reasonable to assume that such engineer would have had expertise and proper tools to effect repair to hose, employer has duty to instruct its personnel with respect to repair of such hoses. Landry v Oceanic Contractors, Inc. (1982, ED La) 548 F Supp 337, affd (CA5 La) 731 F2d 299, reh den, en banc (CA5 La) 746 F2d 812 and reh den, en banc (CA5 La) 746 F2d 812.
Seaman's claim under 46 USCS § 688 to recover damages for injuries allegedly sustained aboard United States merchant vessel against United States is dismissed, where (1) seaman's claim of accident was contradictory, confused, and belied by other evidence in several places, (2) seaman's description of weather conditions and smoothness of vessel's ride at time of accident was belied by deck logs for proposed dates, and (3) convincing proof was not presented as to presence of oil, grease, excessive wetness, or unreasonably dangerous condition of any kind on ladderwell steps, because United States did not breach its duty to provide seaman with safe place to work and equipment that is reasonably fit for safe performance of task at hand. Saleh v United States (1994, SD NY) 849 F Supp 886.
It was for trier of fact to determine whether failure to post lookout amounted to violation of 33 USCS § 221, providing for safety precautions. Wilson v Oil Transport Co. (1957, CA5 La) 242 F2d 727, cert den 355 US 835, 2 L Ed 2d 46, 78 S Ct 56.
46 USCS Appx § 688 gives action for damages for death resulting from negligence as well as for death, without regard to negligence, where violation of statues or regulations contributes to death. Gillespie v United States Steel Corp. (1963, CA6 Ohio) 321 F2d 518, 25 Ohio Ops 2d 22, 7 FR Serv 2d 141, affd 379 US 148, 13 L Ed 2d 199, 85 S Ct 308. (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.
Seaman's damages, which had been predicated on lower court determination that violation of provision of Corps of Engineers Safety Manual was equivalent to violation of safety statute, should be reduced by percentage of seaman's contributory negligence as provision is not elevated to status of statute by incorporation by reference in Armed Services Procurement Regulations. B-R Dredging Co. v Rodriguez (1978, Tex) 564 SW2d 693.
46 USCS Appx § 688 permits recovery for death of seaman resulting from violation of statutory duty in absence of any showing of negligence; thus, cause of action for death of seaman arises under 46 USCS Appx § 688 where he lost his life from lamp igniting vapors where lamp, in violation of Coast Guard navigation rule was maintained at height of less than 8 feet above water, and vapor would not have been ignited if lamp had been carried at required height, it being immaterial that Coast Guard regulation was intended for prevention of collisions and for no other purpose. Kernan v American Dredging Co. (1958) 355 US 426, 2 L Ed 2d 382, 78 S Ct 394.
Violation of federal law providing that all ships' masters, mates, chief engineers, and assistant engineers shall be licensed seamen was negligence as matter of law when violation of federal law was proximate cause of injury to seaman. Gonsalves v Coito (1956, 4th Dist) 144 Cal App 2d 138, 300 P2d 742.
In action by seaman for personal injuries incurred when he fired Lyle gun on board ship, evidence showed that defendant failed to comply with regulations which required it to furnish powder bags properly filled to be used in firing of gun, and this failure was one of proximate causes of accident making defendant liable therefor. Fegan v Lykes Bros. S. S. Co. (1941) 198 La 312, 3 So 2d 632, 1941 AMC 1154.
Failure to require operator of vessel to be licensed was violation of Coast Guard regulations and negligence per se, and since obtaining license would have required physical examination of plaintiff, failure to require license was contributing cause of plaintiff's illness; vessel was required by certificate of inspection to have aboard at all times two ocean operators and two deckhands, except when operating not more than 12 hours in any 24 hour period, and vessel's failure to operate with more than two crewmembers when evidence indicates that additional crewmembers were needed, is violation of Coast Guard regulations and negligence. Smith v Cameron Crews, Inc. (1977, La App 3d Cir) 348 So 2d 179, cert den (La) 351 So 2d 169.
Compliance with customs and practice of industry is not in itself due care. Schlichter v Port Arthur Towing Co. (1961, CA5 La) 288 F2d 801, cert den 368 US 828, 7 L Ed 2d 32, 82 S Ct 50.
In negligence actions under 46 USCS Appx § 688, prevailing trade customs cannot furnish legal standard of due care. Bryant v Partenreederei-Ernest Russ (1964, CA4 Md) 330 F2d 185.
Seaman is not granted relief against tug owner and employer in action arising out of injuries sustained while dragging cable from one tug to another across wooden dock with warped plank, because although there were other possible methods of transporting cables, method employed by owner was reasonable, prudent, safe, and customary, so there is no merit to seaman's claim that he was required to perform his job in dangerous or unreasonable manner. Lombas v Moran Towing & Transp. Co. (1995, SD NY) 899 F Supp 1089.
Any negligence on part of employer under 46 USCS Appx § 688 which plays any part, however slight, in producing injury to employee is sufficient to fix liability for such injuries. Ferguson v Moore-McCormack Lines, Inc. (1957) 352 US 521, 1 L Ed 2d 511, 77 S Ct 457; Sanford Bros. Boats, Inc. v Vidrine (1969, CA5 La) 412 F2d 985, 13 FR Serv 2d 1116; Stacey v Sea-Drilling Corp. (1970, CA5 La) 424 F2d 1272; Davis v Hill Engineering, Inc. (1977, CA5 Tex) 549 F2d 314, reh den (CA5 Tex) 554 F2d 1065; and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90) Santana v United States (1977, CA1 Puerto Rico) 572 F2d 331; Melancon v I. M. C. Drilling Mud (1973, La App 1st Cir) 282 So 2d 532, application den (La) 283 So 2d 769 and application den (La) 283 So 2d 771.
In action under 46 USCS § 688 case should be submitted to jury if, on evidence presented, there is rational basis for inference that defendant was probably in some respect negligent, and that injuries complained of were at least partially caused by such negligence. Smith v Reinauer Oil Transport, Inc. (1958, CA1 Mass) 256 F2d 646, cert den 358 US 889, 3 L Ed 2d 117, 79 S Ct 133.
Under 46 USCS Appx § 688, which incorporates Federal Employers' Liability Act (45 USCS § § 51 et seq.), employer is liable for injury to employee resulting in whole or in part from employer's negligence, and such standard of liability is not identical to employer's negligence being "substantial factor" in causing employee's injury. Farnarjian v American Export Isbrandtsen Lines, Inc. (1973, CA2 NY) 474 F2d 361 (disagreed with Joyce v Atlantic Richfield Co. (CA10 Colo) 651 F2d 676).
That only slightest negligence need be shown to uphold award of damages in 46 USCS Appx § 688 cases does not mean that seaman may prevail on no evidence at all; there must be some evidence from which jury can infer that unsafe condition existed and that owner either knew or, in exercise of due care, should have known of it. Perry v Morgan Guaranty Trust Co. (1976, CA5 La) 528 F2d 1378.
Remedial nature of 46 USCS Appx § 688 and its imposition of higher standard of care on employers results in liability upon showing of only slight negligence. Allen v Seacoast Products, Inc. (1980, CA5 La) 623 F2d 355, 6 Fed Rules Evid Serv 536 (disagreed with by multiple cases as stated in Nix v Kansas City S. R. Co. (CA5 Tex) 776 F2d 510).
District Court adequately explained to jury lesser standard of negligence needed to establish liability under Jones Act, where District Court instructed jury, inter alia, that (1) negligence is legal cause of damage if it played any part, no matter how small, in bringing about or actually causing injury or damage, (2) jury may find injury or damage legally caused by defendant's act or omission if it should find "any" negligence of defendant contributed in any way to plaintiff's injury, and (3) unseaworthiness claim differs from Jones Act claim. Rogers v Eagle Offshore Drilling Services, Inc. (1985, CA5 La) 764 F2d 300, reh den, en banc (CA5 La) 770 F2d 549.
More than ample evidence supported jury's finding of liability of owner and pro hac vice owner of barge, on which seaman was injured, under 46 USCS Appx § 688, because (1) multiple references to letters on side of barge which were initials of corporate owner proved ownership, (2) tug's deck log and testimony indicated tug boat company's complete command and control over barge and proved pro hac vice ownership, and (3) evidence of inadequate lighting and dent on barge which caused seaman to trip proved slight negligence and therefore liability. Turner v Inland Tugs Co. (1988, ED La) 689 F Supp 612.
Proper test of liability in action brought under Jones Act (46 USCS Appx § 688) is whether employer's negligence played any part in causing injury. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.
Trial court's refusal, in action under 46 USCS Appx § 688, to give instruction on proximate cause to effect that if employer's negligence played any part, even slightest, in producing injury to plaintiff, plaintiff may recover, and court's giving traditional instruction that proximate cause is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces result complained of, and without which it would not have occurred, was reversible error. De Lima v Trinidad Corp. (1962, CA2 NY) 302 F2d 585.
Employer's negligence need not be sole proximate cause of injury to result in his liability, but may merely be contributing cause of accident. Spinks v Chevron Oil Co. (1975, CA5 La) 507 F2d 216, clarified (CA5 La) 546 F2d 675 and (disagreed with by multiple cases as stated in Doucet v Gulf Oil Corp. (CA5 La) 783 F2d 518, reh den (CA5 La) 788 F2d 250); Bennett v Perini Corp. (1975, CA1 Mass) 510 F2d 114 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den 469 US 1211, 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)); Reyes v Vantage S.S. Co. (1977, CA5 Tex) 558 F2d 238, on reh (CA5 Tex) 609 F2d 140, later app (CA5 Tex) 672 F2d 556, later proceeding (SD Tex) 575 F Supp 926, withdrawn; Smith v Cameron Crews, Inc. (1977, La App 3d Cir) 348 So 2d 179, cert den (La) 351 So 2d 169.
Court will decline to apply lesser Jones Act standard of causation to general maritime law claims. McClow v Warrior & Gulf Navigation Co. (1988, CA11 Ala) 842 F2d 1250.
In Jones Act cases, necessary causal connection requires more than mere "but for" cause; alleged negligence must be "legal cause" of injury. Gavagan v United States (1992, CA5 Tex) 955 F2d 1016.
In 46 USCS Appx § 688 action predicated upon unseaworthiness of vessel or negligence on part of shipowner libelant must prove that unseaworthy condition was proximate cause of his injury, or that negligence of respondent caused in whole or in part injury complained of. Goodrich v Cargo Ships & Tankers, Inc. (1965, ED La) 241 F Supp 332, 1965 AMC 2749.
Causative element in Jones Act cases is less than common-law standard of proximate cause; question is whether actions of defendant contributed to injury even in slightest degree; employer's negligence need not be sole proximate cause of injury to result in liability but need merely be contributing cause. Complaint of Chevron Transport Corp. (1985, MD Fla) 613 F Supp 1428.
Under 46 USCS Appx § 688, it is not necessary to show that employer's negligence was proximate cause of injury or death complained of, but that it is sufficient to establish jury question by simply showing some negligence on part of employer, coupled by direct or circumstantial evidence to injury or death of employee. Gaymon v Quinn Menhaden Fisheries, Inc. (1960, Fla App D1) 118 So 2d 42, 81 ALR2d 1165.
In death actions sounding in negligence under 46 USCS Appx § 688, when exact circumstances of casualty are known, United States Supreme Court has fundamentally transformed traditional negligence law respecting causation by permitting finder of fact to supply by inference many elements normally required to be proven by plaintiff; as to defendant's negligence constituting legal cause of accident, slight evidence is sufficient so long as inference is that which reasonable, prudent men might reach on basis of evidence; by use of extension of res ipsa loquitur principle regarding permissible inferences from unexplained events, finder of facts may infer requisite legal causation and test is simply whether proofs justify with reason conclusion that employer negligence played any part, even slightest, in producing injury, it being immaterial that from evidence finder of fact may also with reason, on grounds of probability attribute results to other causes, including employee's contributory negligence. Admiral Towing Co. v Woolen (1961, CA9 Cal) 290 F2d 641.
Even if lifeboats were carried in negligent manner, seaman injured when vessel was torpedoed could not recover if there was no substantial evidence connecting alleged negligence with injury as its proximate cause. Ryan v United States (1945, CA3 Pa) 150 F2d 366, 1945 AMC 690.
Where sailor sued employer for injuries sustained because of failure to properly repair malfunctioning high pressure hoses on vessel, trial court correctly ruled that failure to train workers in use of hose caused injury but damaged hose itself did not, since issues relating to seaworthiness (i.e. damaged condition of ship) requires a traditional showing of causation to establish liability, whereas liability for failure to train need only be shown by slight evidence of relatively attenuated causation. Landry v Oceanic Contractors, Inc. (1984, CA5 La) 731 F2d 299, reh den, en banc (CA5 La) 746 F2d 812 and reh den, en banc (CA5 La) 746 F2d 812.
Captain's failure to consult chart depicting location of natural gas pipeline was not cause of accident where chart did not indicate that it would be unsafe to navigate over it, captain had fished waters for 13 years, and charted location of pipeline was actually 150 feet in error. Zapata Haynie Corp. v Arthur (1992, CA5 La) 980 F2d 287, reh, en banc, den (CA5) 1993 US App LEXIS 2349.
Suit by crewman of fishing vessel fails under 46 USCS Appx § 688, where crewman gave conflicting versions of what caused his injury and concealed parts of his medical history during doctor visits and deposition, because crewman failed to show his injuries resulted from either negligence of captain or crew or unseaworthiness of vessel. Biktjorn v Bendiksen (1991, WD Wash) 774 F Supp 581, 1992 AMC 347.
Assuming that vessel negligently failed properly to maintain ship's living facilities and that their uninhabitability rendered vessel unseaworthy, those facts alone fail to establish legally adequate causal link between alleged negligence and seaman's injuries sustained in motorcycle accident while traveling from vessel to crew's living quarters. Brown v Stanwick International, Inc. (1979, Fla App D3) 367 So 2d 241.
For employer to be negligent under 46 USCS Appx § 688, defect for which seaman is suing must be of such nature that ship owner should reasonably have apprehended danger of injury. Pittsburgh S.S. Co. v Palo (1933, CA6 Ohio) 64 F2d 198.
Proof of negligence on part of shipowner involves at least showing that under existing circumstances, shipowner or his agents should reasonably have anticipated danger or bodily injury to member of crew. Sundberg v Washington Fish & Oyster Co. (1943, CA9 Wash) 138 F2d 801, 1943 AMC 1337.
In action to recover damages under 46 USCS Appx § 688, it could not be said that there was negligence as matter of law in absence of establishing that either crew members, seamen or officers were aware of dangerous condition. Williams v Tide Water Associated Oil Co. (1955, CA9 Wash) 227 F2d 791, cert den 350 US 960, 100 L Ed 834, 76 S Ct 348.
Forseeability of harm is pertinent test in negligence cases under 46 USCS § Appx 688. Gwinett v Albatross S.S. Co. (1957, CA2 NY) 243 F2d 8, cert den 355 US 828, 2 L Ed 2d 41, 78 S Ct 40.
Where vice-president of lighterage company had knowledge of defect causing injury and decided that it was not of sufficient importance to warrant repairs, company was liable. The New Zealand (1931, DC NY) 49 F2d 781.
Federal court has admiralty jurisdiction over asbestos liability case in which seaman claims injury following exposure to asbestos in ship's engine room, since asbestos manufacturers could reasonably expect their products would be utilized aboard ocean-going vessels, seaman's duties were central to maritime function of vessels, and vessels were engaged in maritime commerce. Tritt v Atlantic Richfield Co. (1989, ED Pa) 709 F Supp 630.
Seaman severely injured in fight with fellow crewman is denied recovery under Jones Act (46 USCS Appx § 688) for negligent hiring or supervision, where only deck boss knew of crewman's previous fight and even he thought crewman was not violent, because crewman's violence was not foreseeable. Torres v M/V Fuiono Fishing Vessel (2001, SD Cal) 141 F Supp 2d 1028.
In order to prove breach of duty to provide safe vessel under Jones Act (46 USCS Appx § 688), plaintiff must demonstrate that vessel owner or operator knew or should have known of alleged unsafe and negligent condition on vessel. Clements v Chotin Transp., Inc. (1980, MD La) 496 F Supp 163.
Cause of action sounding in negligence under 46 USCS Appx § 688 will fail when plaintiff does not come forward with any evidence which would establish that defendant had either actual or constructive notice of allegedly unsafe condition complained of by plaintiff. Lotzman v Oxyness Shipping Co. (1978) 93 Misc 2d 461, 402 NYS2d 964.
Captain of ship was not negligent in hiring deceased as steward even though he met deceased in hospital prior to his appointment, where captain did not have any personal knowledge that deceased was suffering from disease which made long ship journeys dangerous. Potter Title & Trust Co. v Ohio Barge Line, Inc. (1950, CA3 Pa) 184 F2d 432, 1950 AMC 273, cert den 340 US 955, 95 L Ed 689, 71 S Ct 567.
Instruction by trial judge that if seaman who was lost at sea knowingly misrepresented his physical condition, and that because of misrepresentation shipowner was justified in not taking special precautions for seaman's safety, then jury could not find shipowner negligent under 46 USCS Appx § 688 in that regard, was proper, since shipowner was not obligated to provide special precautions unless he knew of particular physical condition requiring such precautions. Estate of Larkins v Farrell Lines, Inc. (1986, CA4 Md) 806 F2d 510.
Where crew of vessel negligently permitted seaman suffering from epileptic seizure to fall overboard and drown, vessel owner was liable. Russell v Merchants & Miners Transp. Co. (1937, DC Va) 19 F Supp 349, 1937 AMC 246.
Shipowner was liable, under 46 USCS Appx § 688 and 46 USCS Appx § § 761 et seq., for crew's negligence contributing to death of seamen who disappeared at sea, where master was aware of severe psychiatric condition and suicidal note of seaman and was aware that proper course of conduct was one of constant observation. Bednar v United States Lines, Inc. (1973, ND Ohio) 360 F Supp 1313.
Even though steamship company had knowledge of disability of mess boy when it employed him, it would not be held negligent on that account in action under 46 USCS Appx § 688 for damages suffered by employee from heat stroke. Ducombs v Lykes Bros. S.S. Co. (1941, La App, Orleans) 1 So 2d 114.


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Key text: “Serve wholeheartedly, as if you were serving the Lord, not men, because you know that the Lord will reward everyone for whatever good he does, whether he is slave or free” (Ephesians 6:7-8).
Lesson objective: To understand that the rise of the Christian faith had such an impact on the Gentile world that it changed the status quo of personal relationships across family and social barriers, through the principle of equal treatment and mutual submission in the Lord.
Introduction: The world was very different in Paul’s day. The Roman Empire was pagan to the core, and there was no sense of equal treatment (a concept we have today based on creation and redemption). Christianity was to play a major role in planting the seeds of change in the ancient world by example and unreserved commitment to Christ. Those seeds would eventually give fruit to the freedoms that we enjoy so much today in the “free world.” Make no mistake about it; the freedoms we enjoy are Christian-based principles. Without Christ, there would be no such freedoms today!
In ancient Rome, children were very vulnerable and often thrown out and abandoned, or worse. As long as a child’s father lived, the child was under the father’s absolute power. The son or daughter could be a grown person and still be beaten, and or at the father’s whim have their very lives taken from them. Also, a father had the sole authority to decide whether to retain a newborn child or throw the baby out. The expositor William Barclay mentions an ancient letter where the father’s request to his pregnant wife is that if the child is a boy to let him live, but if a girl to throw her out! This kind of thinking was common. However, in the ever-growing minority group of Christians, this behavior was not tolerated. Christ’s example set a new standard for the Gentile world. Mutual submission in the Lord was the new order of the day for both children and their parents (6:1-4).
In ancient Rome the institution of slavery was alive and thriving. Slavery was embedded in the very fabric of society. It was like a plague from humanity’s early beginnings that stretched across millennia well into the 19th century! Israel had known slavery and had slaves themselves. God acknowledged the presence of slavery as he had polygamy, but never condoned either! It was the way the fallen world was, and it would take time for the world to mature and understand the fuller implications of the gospel.
The Roman Empire had more than 60 million slaves! There were more slaves in Rome than free persons. Obviously, slavery would not disappear overnight, but it eventually did! And as odd as it may seem, the seeds of freedom were sown in the benevolent treatment of Christian slaves by their Christian masters, and vice versa (vv. 5-9).
Perhaps the greatest New Testament account of the principle of equal treatment and mutual submission is that of Philemon and his slave Onesimus. Paul’s epistles, such as Philemon, which he wrote while in prison, helped forge the abolitionist movements in 19th-century England, America and other parts of the world. Unfortunately, slavery is still present in the world today, but it is no longer the worldwide institution it once was, thanks to Christ’s perennial example and the maturing of the Christian faith.
a. Who does Paul directly address? v. 1a. What instructions does he give to them, and in what manner are they to obey? v. 1b. Why? v. 1c.
b. What old covenant commandment does Paul appeal to? v. 2a. See Deuteronomy 5:16 and Exodus 20:12.
c. What is so special about this commandment? v. 2b. What promise did the original commandment refer to? Note: The original commandment was the heart of the old covenant made with Israel concerning the Promised Land in Canaan.
d. By apostolic authority, what change does Paul make to the commandment as now applied to the new covenant church? v. 3.
e. Who does Paul address next? v. 4a. What imperative does Paul give them? v. 4b. What does Paul mean by “do not exasperate”? Explain and illustrate with real-life examples.
f. How should fathers help in bringing up their children? v. 4c. Whose teachings are children to be given? Note: Here the words “of the Lord” are referring to Christ’s example and teachings. This also brings new light to a favorite old proverb, Proverbs 22:6.
a. Who does Paul address here? v. 5a. What instructions does he give them, and in what manner are they to obey? v. 5b. What pattern are they to imitate in this regard? v. 5c. How difficult would this be, knowing in your heart that slavery is wrong?
b. What superficial manner of work did many slaves display? v. 6a. How was this to be different for a Christian slave? v. 6b.
c. What kind of service are they to render? v. 7. Why?
d. What motivation does Paul give to Christians bound in slavery? v. 8. How would you answer the charge that the rich have their heaven on earth at the expense of the poor in the here and now?
e. Who does Paul address next? v. 9a. What imperative does Paul give them? v. 9b. What are they admonished not to do? v. 9c. Why? v. 9d. What does Paul mean by “no favoritism with him”? v. 9e.
a. From this brief description, who do you think Philemon is? vv. 1-3.
b. From the following description, what kind of character does Philemon have? vv. 4-7. How well does Paul know him?
c. On what basis is Paul making an appeal to Philemon? vv. 8-9. What is Paul’s physical condition that prompts Paul to communicate by letter?
d. On whose behalf is Paul making this appeal? v. 10a. What does Paul mean by a certain person becoming his son: Did Paul have a biological sonwhile in prison, or is Paul writing of his newly adopted son according to Roman custom, or does Paul mean his new spiritual son via personal evangelism? v. 10b.
e. What former connection is Paul acknowledging between Onesimus and Philemon? v. 11. Note: Philemon was a wealthy slaveowner turned Christian. Onesimus was Philemon’s runaway slave. He apparently stole something valuable and fled to Rome, where somehow he met Paul in prison and was converted to Christ!
f. What does Paul tell Philemon that he is about to do? vv. 12-16. What reason does Paul give concerning God’s providence and Onesimus?
g. What is Paul’s appeal to the Christian master Philemon regarding the treatment of his Christian slave? vv. 17-20. Would you not say that this was radical for the times?
h. What are Paul’s expectations of Philemon concerning Onesimus? v. 21. Note: What Paul implies, although he does not say so directly, is that he wants Philemon to free Onesimus.
i. How does Paul show his resolve to make sure that Philemon does what Paul has asked him to do? v. 22. How does Paul conclude? vv. 23-25.
1. What is your assessment of Christian parenting in the 21st century? How well are Christians instructing and training their children in the Lord?
2. Although there is an enormous cultural difference in Paul’s instructions to salves and masters, how may the principles be applied today?
God’s ultimate purpose is to gather all things under the headship of Jesus Christ, and this includes our attitudes and responses across family and social barriers. May our way of living with family and others reflect his grace and glory!

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Our sales terms shall apply exclusively. We cannot acknowledge any opposing terms or terms of the buyer, which deviate from our own sales terms, unless we have expressly agreed to such other terms in writing. Our sales terms shall apply even if we make our delivery to the buyer unreservedly despite knowing of such opposing terms or terms of the buyer, which deviate from our own sales terms.
All agreements regarding the execution of this contract, which are made between us and the buyer, are included in this contract in writing.
Our sales terms shall only apply to companies in the meaning of § 310 section 1 German Civil Code (BGB).
(1) Our precontractual notifications, especially all proposals, descriptions and estimates, are non-binding except for an expressive agreement.
If the order can be qualified as a proposal according to § 145 BGB, we can accept the order within a period of two weeks.
We reserve property rights and copyrights of all images, drawings, calculations and other documents. This shall also apply to such written documents that are described as “confidential”. Prior to passing-on the above documents to third parties, the buyer must have our express approval in writing.
We reserve the right to implement technical alterations in the course of the execution of the order, if such alterations result from the progress of technical developments or will provide benefits or improvements to the system’s performance in each individual case.
If the order confirmation does not state otherwise, our prices shall be “ex factory” and excluding packaging. Packaging shall be invoiced separately. We reserve the right to alter our prices accordingly, if cost reductions or increases occur after the conclusion of the contract, in particular due to labor agreements or changes in material prices. The buyer shall be entitled to see the respective proof on request.
Our prices are exclusive of sales tax at the legal rate. The sales tax shall be stated separately on the invoice to the legal rate that is valid on the invoice date.
Any cash discounts require a special written agreement.
If our order confirmation does not state otherwise, the net purchase price (without deductions) shall be due within 30 days from the invoice date. The legal provisions with regard to the consequences of late payment shall apply.
The buyer shall only be entitled to claim offsetting rights if his counterclaims have been lawfully acknowledged or are beyond dispute or have been acknowledged by us. The buyer shall also be entitled to exercise a right of retention as far as his counterclaim is based on the same contractual relationship.
The delivery dates stated by us are in principle non-binding. The commencement of all delivery dates agreed on a binding basis in a specific case requires all technical issues to have been clarified in advance.
Furthermore, the fulfillment of our delivery obligation shall be subject to the buyer having fulfilled all of his obligations properly and in due time. We reserve the right to put forward a defense against the unfulfilled contract.
Our delivery shall also be subject to the correct and timely receipt of our own deliveries. We shall notify the buyer of the non-availability of the delivery item immediately and, in the event of his withdrawal from the purchase, shall reimburse the respective amount to the buyer immediately.
If the buyer does not accept the delivery in due time or if he culpably violates any other of his obligations to cooperate, we shall be entitled to request compensation for any damage that we might have incurred including possibly extra expenses. We reserve the right to make further claims.
If the requirements of section 3 apply, the risk of an accidental destruction or deterioration of the purchased item shall be transferred to the buyer at the point when he has defaulted with regard to the acceptance or as a debtor.
We shall be liable according to all applicable laws and regulations if the underlying purchase contract is a short selling in the meaning of § 286 section 2 no. 4 BGB or § 376 HGB. We shall also be liable according to all applicable laws and regulations if the buyer, as a result of a late delivery, for which we are responsible, is entitled to claim that his interest in the continued fulfillment of the contract has ceased.
We shall also be liable according to all applicable laws and regulations if the late delivery is due to an intentional or grossly negligent violation of the contract, for which we are responsible. Any culpability of our agents or representatives shall be attributed to us. If the late delivery is not due to an intentional violation of the contract, for which we are responsible, our liability for damages shall be limited to the predictable damage, which typically occurs in such events.
We shall also be liable according to all applicable laws and regulations if the late delivery, for which we are responsible, is due to the culpable violation of a material contractual obligation. However, in this case our liability for damages shall be limited to the predictable damage, which typically occurs in such events.
Apart from the above, in the event of a late delivery, we shall be liable for damages for each week of delay subject to a flatrate delay compensation to the amount of 3% of the delivery value, but not more than 15% of the delivery value.
Further claims and entitlements of the buyer according to law shall be reserved.
We shall be entitled to render partial performances. In such cases we shall be entitled to request partial payments.
Our delivery shall be “ex factory”, unless the order confirmation states otherwise.
Neither the transport packaging nor any other packaging materials are returnable (subject to the German Packaging Ordinance). The buyer shall be obliged to arrange the disposal of the packaging at his own expense.
We shall arrange for the cover of the delivery by transport insurance on the buyer’s request. The buyer shall bear the costs of such insurance.
Any claims for defects by the buyer are subject to the buyer having properly fulfilled his obligations with regard to goods receipt inspection and complaints according to § 377 German Commercial Code (HGB).
the defect, especially all transport, travel, labor and material costs, unless these have increased due to the fact that the purchased item has been transported to a location that is different from the place of fulfillment.
If the supplementary performance fails, the buyer shall be entitled to withdraw from the contract or to request a price reduction at his own discretion.
We shall be liable according to all applicable laws and regulations if the buyer claims compensation for damages, which are due to our intentional or grossly negligent behavior, including any intentional or grossly negligent behavior by our agents or representatives. Our liability for damages shall be limited to the predictable damage, which typically occurs in such events, unless it is claimed that we have intentionally violated the contract.
We shall be liable according to all applicable laws and regulations if we have culpably violated a material contractual obligation. However, in this case our liability for damages shall be limited to the predictable damage, which typically occurs in such events.
If the buyer is entitled to compensation instead of receiving the performance, our liability shall also be limited to the predictable damage that typically occurs in such events, subject to section 3.
The liability for culpable death, injury or damage to the health of a person shall remain unaffected, and this shall also apply for mandatory liability according to the German Product Liability Law.
§§ 478 and 479 BGB (delivery recourse for the purchase of consumer goods) shall remain unaffected. In this case the buyer shall notify us of any defect-related complaint from his clients within five days; otherwise the goods shall be regarded as approved. The buyer shall wait for an appropriate period of time until we have decided on our course of action with regard to the supplementary performance. Only after we have made our decision, the dealer may start any repair work, promise a new delivery, or claim that the alternative of the supplementary performance, which was chosen by his buyer, is unacceptable. The dealer shall return the faulty product to us on our request.
damage, for example for the non-functioning of the system, burglary, costs charged by the police, fire department or security companies in the event of a hazard notification.
a statute of limitation of three years. § 479 BGB shall remain unaffected.
The statutes of limitation according to section 10 shall apply also to all compensation claims against us in connection with the defect, irrespective of the legal basis of the claim.
c) The statutes of limitation shall also not apply to compensation claims in cases of death, injury, or damage to the health or freedom of people, for claims subject to the German Product Liability Act, for the grossly negligent violation of obligations or the violation of material contractual obligations. In these cases the legal statutes of limitation shall apply.
To ensure that TELENOT products function properly, it is essential that advice, planning, as well as mounting, commissioning and maintenance works are provided/performed by a trained installation company. We accept no liability for functional impairments and faults that result from the failure to adhere to these requirements.
or due to tort claims for the compensation of damage to property according to § 823 BGB.
If the liability for compensation towards us is excluded or limited, this shall also apply with regard to the personal liability for damages of our executives, employees, representatives and agents.
We reserve our property of the purchased item until all payments from the delivery contract have been received. If the buyer acts against the contractual provisions, especially in the event of late payment, we shall be entitled to reclaim the purchased item.
Our reclaiming of the purchased item shall not constitute any withdrawal from the contract, unless we have expressly stated this in writing. However, the attachment of the purchased item by us shall always constitute a withdrawal from the contract. After we have reclaimed the purchased item we shall be entitled to dispose of it. The disposal proceeds shall be offset with the buyer’s liabilities – minus the appropriate disposal costs.
The buyer shall be obliged to treat the purchased item carefully, and he shall be particularly obliged to insure the item sufficiently (for its new value) against fire, flood and theft at his own expense. If repair and inspection work is required, the buyer must have such work carried out in due time at his own expense.
In the event of attachments or other intervention by third parties, the buyer shall notify us immediately in writing so that we can file a lawsuit according to § 771 German Code of Civil Procedure (ZPO). If the third party is unable to reimburse us for the court fees and other legal costs of a lawsuit according to § 771 ZPO, the buyer shall be liable for the loss that we have incurred.
from the fact whether the purchased item has been resold with or without having been processed by the buyer. The buyer shall remain entitled to collect this claim even after he has assigned his claim. Our entitlement to collect the claim ourselves shall remain unaffected by the above.
is the case we shall be entitled to request that the buyer indicates to us the assigned claims and respective debtors as well as all details that are necessary for the collection, provides us with all respective documents and notifies his debtors (third parties) of the assignment.
The processing or modification of the purchased item shall always be carried out by the buyer on our behalf. If the purchased item is processed with other objects that are not our property, we shall acquire joint ownership in the new item in the ratio of the purchased item’s value (final invoice amount incl. sales tax) to the other processed items at the time of processing. For the item created by means of processing, the same provisions shall apply as for the purchased item delivered subject to our reservations.
item can be regarded as the main item, it shall be agreed that the buyer assigns joint ownership to us according to the proper ratio. The buyer shall store the sole property or joint property that has been created in this manner on our behalf.
The buyer shall assign to us the claims for securing our claims against him, which result from the connection of the purchased item with a property against a third party.
We agree to release the securities, to which we are entitled, on the buyer’s request in so far as the realized value of our securities exceeds the claims that are to be secured by more than 10 %. We shall be entitled to choose the securities that are to be released at our own discretion.
If the buyer is a merchant, our registered address shall be the place of jurisdiction. However, we shall also be entitled to file a lawsuit against the buyer at his registered address.
The laws of the Federal Republic of Germany shall apply. CISG law shall be excluded.
Our registered address shall be the place of fulfillment, unless the order confirmation states otherwise.
In addition the following “supplementary notes regarding the sales conditions” shall apply.
For orders up to a goods value of €40.00 net, a small-amount surcharge of €12.00 shall be charged.
Potential return of products generally requires them to be unused and in original packaging, and for them to have been delivered by TELENOT no longer than 3 months in the past. Return shipments shall be permissible only after the client has notified us prior to the shipment and we have approved the return. The return shipment shall take place always without freight charges. In such cases we shall issue a returns number (RLN). This RLN must be stated on the delivery documents that are included with the return. Return shipments without an RLN as well as return shipments not consistent with the return requirements shall be rejected by us at the cost of the consignor. All returns must include copies of the respective delivery notes that were previously issued by us. We reserve the right to offset a flat fee for costs.
applications. If the assembly groups are used in another manner than the manner that was specified by TELENOT, the installer/manufacturer of this system shall be solely responsible for complying with the guidelines for the CE marking or the VDE regulations (German Association for Electrical, Electronic & Information Technologies) and shall prepare his own declaration of conformity with regard to the compliance with the relevant guidelines. The connection of assembly groups to the 230-volt outlet power must be carried out only by a qualified electrician according to VDE regulations.
Building work, local changes or external influences can all result in the change of the propagation conditions for radio waves. This could mean that the correct functioning of the wireless components is no longer guaranteed or that wireless components can no longer be operated at all. More specifically this means that modifications to the system will become necessary and the affected wireless components will have to be replaced by wired components. TELENOT shall not be responsible for these circumstances and shall not bear the consequential cost. These circumstances shall not amount to any entitlement to return the used products.
Complaints regarding allegedly faulty batteries and rechargeable batteries can only be processed if the faulty battery is returned together with the relevant details regarding its operational time, location and type of use as well as the identified fault.
Software-controlled devices are subject to constant development and expanded performance features. Due to these changes, it cannot be excluded that delivered configuration devices or the associated parameterization software are no longer fully compatible with current devices. Equally, in rare cases, older devices can no longer be retrofitted with more recently developed additional boards. Therefore, older devices may not always be upgradeable. The current software versions and associated incompatibilities are published in the respective technical description as well as in notes regarding the devices and on our website. All current software versions always correspond to state-of-the-art technology at the time of their release.
In order to verify the warranty entitlement of a piece of equipment, a copy of the delivery note must be returned with the equipment or component/assembly. The control or serial number labels of the components as well as factory designations must not be removed or rendered illegible.
a) We regard the return of faulty devices as a repair order issued by the client, unless other notes (e.g. complaint or request for an estimate) are indicated on the delivery documents.
event of a subsequent order, these costs shall be offset against the purchase price.
c) Included in each repair order is checking the device with regard to the current status of its software version (if applicable). The software shall be updated (for a fee) if this is technically reasonable and possible, unless the client has expressly stated that he does not want such a software update in the course of the repair work. TELENOT must be notified if a device contains customer-specific software and if this software must not be updated in the course of the repair work.
TELENOT if they have been manufactured by us or purchased from us and are returned to us at the sender’s expense.
We are neither willing nor obliged to participate in proceedings relating to consumer dispute resolution before a consumer mediation body.


1. The Commerce Clause did not wholly withdraw from the States the power to regulate matters of local concern with respect to which Congress has not exercised its power, even though the regulation affects interstate commerce. P. 313 U. S. 113.
2. The federal Motor Carrier Act of 1935 does not include the regulation of casual or occasional interstate transportation of passengers by persons not engaged in such transportation as a regular occupation or business, § 303(b)(9). P. 313 U. S. 112.
license or furnished the bond, arranged for motor transportation of passengers from California to Texas by.a carrier who, so far as appears, made only the single trip. P. 313 U. S. 115.
4. Di Santo v. Pennsylvania, 273 U. S. 34, overruled. P. 313 U. S. 116.
Certiorari, 312 U.S. 672, to review the reversal of a conviction on a charge of misdemeanor.
A statute of California, Ch. 390, Statutes of 1933, p. 1011, as amended by Ch. 665, Statutes of 1935, p. 1833, defines a transportation agent as one who "sells or offers for sale, or negotiates for" transportation over the public highways of the state, § 2, and requires every such agent to procure a license from the State Railroad Commission authorizing him so to act. By §§ 6, 7, and 8, prerequisites to the license are determination by the Commission of the applicant's fitness to exercise the licensed privilege, the payment of a license fee of $1, and the filing by the applicant of a bond in the sum of $1,000, conditioned upon the faithful performance of the transportation contracts which he negotiates. By § 16, any person acting as a transportation agent without a license is guilty of a misdemeanor. The question for decision is whether the statutory exaction of the license and bond infringes the Commerce Clause of the Constitution, art. 1, § 8, cl. 3, when applied to one who negotiates for the transportation interstate of passengers over the public highways of the state.
passengers from Los Angeles, California, to Dallas, Texas, by one who, so far as appears, made only the single trip in question. The state appellate court reversed the judgment of conviction, holding, on the authority of Di Santo v. Pennsylvania, 273 U. S. 34, that the statute as applied infringes the Commerce Clause. We granted certiorari, 312 U.S. 672, the question, considered in the light of our decisions since the Di Santo case, sustaining state regulations affecting interstate transportation by motor vehicle, being of importance.
Congress has not undertaken to regulate the acts for which respondent was convicted or the interstate transportation to which they related. The Motor Carrier Act of 1935, 49 Stat. 543, 49 U.S.C. §§ 301-327, which applies to certain classes of common and contract interstate carriers by motor vehicle, excludes from its operation the casual or occasional transportation by motor vehicle of passengers in interstate commerce by persons not engaged in such transportation as a regular occupation or business, § 303(b)(9). Hence, we are concerned here only with the constitutional authority of the state to regulate those who, within the state, aid or participate in a form of interstate commerce over which Congress has not undertaken to exercise its regulatory power.
by motor vehicle who are peculiarly unable to protect themselves from fraud and overreaching of those engaged in a business notoriously subject to those abuses.
As this Court has often had occasion to point out, the Commerce Clause, in conferring on Congress power to regulate commerce, did not wholly withdraw from the states the power to regulate matters of local concern with respect to which Congress has not exercised its power, even though the regulation affects interstate commerce. Ever since Willson v. Blackbird Creek Marsh Co., 2 Pet. 245, and Cooley v. Board of Port Wardens, 12 How. 299, it has been recognized that there are matters of local concern the regulation of which unavoidably involves some regulation of interstate commerce, but which, because of their local character and their number and diversity, may never be adequately dealt with by Congress. Because of their local character, also, there is wide scope for local regulation without impairing the uniformity of control of the national commerce in matters of national concern, and without materially obstructing the free flow of commerce which were the principal objects sought to be secured by the Commerce Clause. Notwithstanding the Commerce Clause, such regulation, in the absence of Congressional action, has, for the most part, been left to the states by the decisions of this Court, subject only to other applicable constitutional restraints. See cases collected in Di Santo v. Pennsylvania, supra, 273 U. S. 40.
U.S. 685. It may require interstate passenger cars to be heated, and guard posts to be placed on bridges of an interstate railroad. New York, N.H. & H. R. Co. v. New York, 165 U. S. 628. It may limit the speed of interstate trains within city limits. Erb v. Morasch, 177 U. S. 584. It may require an interstate railroad to eliminate grade crossings. Erie R. Co. v. Public Utility Commissioners, 254 U. S. 394, 254 U. S. 409, 254 U. S. 412. It may pass local quarantine laws applicable to merchandise moving in interstate commerce as a means of protecting local health. Morgan's S.S. Co. v. Louisiana, 118 U. S. 455; Compagnie Francaise v. Board of Health, 186 U. S. 380. It may regulate and protect the safe and convenient use of its harbors and navigable waterways unless there is conflict with some act of Congress. Willson v. Blackbird Creek Marsh Co., supra; see Clyde Mallory Lines v. Alabama, 296 U. S. 261, 296 U. S. 267. It may regulate pilots and pilotage in its harbors. Cooley v. Board of Port Wardens, supra. Where, as here, Congress has not entered the field, a state may pass inspection laws and regulations applicable to articles of interstate commerce designed to safeguard the inhabitants of the state from fraud, provided only that the regulation neither discriminates against nor substantially obstructs the commerce. Turner v. Maryland, 107 U. S. 38; Plumley v. Massachusetts, 155 U. S. 461; Patapsco Guana Co. v. North Carolina, 171 U. S. 345, 171 U. S. 357-358; Savage v. Jones, 225 U. S. 501; see also Minnesota Rate Cases, 230 U. S. 352, 230 U. S. 398-412, and cases cited; South Carolina State Highway Dept. v. Barnwell Bros., 303 U. S. 177, 303 U. S. 185-191, and cases cited.
engaged in the transportation, but who acts only as broker or intermediary in negotiating a transportation contract between the passengers and the carrier. The license required of those engaged in such business is not conditioned upon any control or restriction of the movement of the traffic interstate, but only on the good character and responsibility of those engaged locally as transportation brokers.
Fraudulent or unconscionable conduct of those so engaged which is injurious to their patrons is peculiarly a subject of local concern, and the appropriate subject of local regulation. In every practical sense, regulation of such conduct is beyond the effective reach of Congressional action. Unless some measure of local control is permissible, it must go largely unregulated. In any case, until Congress undertakes its regulation, we can find no adequate basis for saying that the Constitution, interpreted as a working instrument of government, has foreclosed regulation, such as the present, by local authority.
motor vehicle wherever it affects the safety of the public or the safety and convenient use of its highways, provided only that the regulation does not in any other respect unnecessarily obstruct interstate commerce. Continental Baking Co. v. Woodring, 286 U. S. 352, 286 U. S. 371; Bradley v. Public Utilities Commission, 289 U. S. 92, 289 U. S. 95; see South Carolina State Highway Dept. v. Barnwell Bros., supra, and cases cited; H. P. Welch Co. v. New Hampshire, 306 U. S. 79, 306 U. S. 83; Eichholz v. Public Service Commission, 306 U. S. 268; Maurer v. Hamilton, 309 U. S. 598, 309 U. S. 603, and see Ziffrin, Inc. v. Reeves, 308 U. S. 132.
If there is authority in the state, in the exercise of its police power, to adopt such regulations affecting interstate transportation, it must be deemed to possess the power to regulate the negotiations for such transportation where they affect matters of local concern which are in other respects within state regulatory power, and where the regulation does not infringe the national interest in maintaining the free flow of commerce and in preserving uniformity in the regulation of the commerce in matters of national concern. See Hartford Accident & Indemnity Co. v. Illinois, 298 U. S. 155.
The decision in the Di Santo case was a departure from this principle, which has been recognized since Cooley v. Board of Port Wardens, supra. It cannot be reconciled with later decisions of this Court which have likewise recognized and applied the principle, and it can no longer be regarded as controlling authority.


The Bifurcation Requirement for Privacy "Glomarization"
Within the overall realm of Freedom of Information Act administration, few decisions made by FOIA officers can be as difficult as those involving matters of personal privacy. Under either Exemption 6 or Exemption 7(C) of the FOIA, personal privacy interests must be weighed very carefully against any countervailing public interest in disclosure. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776 (1989). Striking this careful balance, in order to ensure proper privacy protection while serving the goal of maximum responsible disclosure, is a vital part of day-to-day FOIA administration.
This is especially important in the area of law enforcement records, in which agencies holding law enforcement responsibilities must ensure that they properly apply the strong privacy protections of Exemption 7(C). Because of the unique sensitivity of law enforcement files, where the mere "mention" of an individual in a record can be indelibly stigmatizing if it is publicly disclosed, law enforcement agencies must take special pains to safeguard personal privacy interests. SeeFitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990) (recognizing "stigmatizing connotation").
There is no greater example of this than privacy "Glomarization" -- a law enforcement agency's practice refusing to confirm or deny that it even maintains an investigative record pertaining named individual. The colloquial term "Glomarization" came into use when "neither confirm nor deny" FOIA principle originated in national security case involving CIA Glomar Explorer submarine-retrieval ship, a case that initially involved a highly classified fact. See Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act 26 (Dec. 1987) (describing origin of "Glomarization" principle in national security context). Under the FOIA, this principle can be used when necessary to protect a sensitive "abstract fact," cognizable under a FOIA exemption, that would be revealed by any other response to a particular FOIA request. Id. Though the principle originated in Exemption 1 FOIA cases, it can be applied in cases involving other FOIA exemptions as well. See FOIA Update, Spring 1986, at 2; FOIA Update, Spring 1983, at 5.
In the context of law enforcement records, entities such as the FBI have been employing the "neither confirm nor deny" principle for many years, in conjunction with Exemption 7(C), when responding to third-party FOIA requests. See, e.g., FOIA Update, Sept. 1982, at 2. They do so based upon the foundation principle that "disclosure of the mere fact that an individual is mentioned in an agency's law enforcement files carries a stigmatizing connotation, one certainly cognizable under FOIA Exemption 7(C)." FOIA Update, Winter 1986, at 3 ("OIP Guidance: Privacy 'Glomarization'"). (In fact, the landmark Reporters Committee case was a "Glomarization" case.) Because of the inherent sensitivity of the files maintained by law enforcement agencies, any FOIA request received by them for records on a named individual potentially raises a threshold privacy concern. See id. (citing "strict nondisclosure requirements" of Privacy Act of 1974, 5 U.S.C. § 552a).
In employing privacy "Glomarization" under Exemption 7(C), of course, law enforcement agencies are mindful that there are cases in which that special response to a third-party FOIA request is not necessary. First, where it is shown that the individual in question is deceased or has consented to a requested disclosure, the basis for privacy "Glomarization" does not exist. See FOIA Update, Winter 1986, at 3-4. Further, if it is determined that a federal investigation involving the individual is so well known to the public that his or her privacy interest is diminished, or that it was conducted under such circumstances that the privacy interest is outweighed by the public interest, then the "neither confirm nor deny" response should not be given. See id.; see also FOIA Update, Summer 1989, at 5 (supplementing guidance in light of Reporters Committee "practical obscurity" and "workable rules" standards).
Likewise, in employing privacy "Glomarization," agencies must be careful not to use it to an extent that is not warranted by the terms of the particular FOIA request at hand. The first duty of any agency handling a FOIA request is to read the request carefully, so that it can give a proper response to it. See, e.g., FOIA Update, Fall 1995, at 3 ("OIP Guidance: Determining the Scope of a FOIA Request"). When it comes to the potential use of privacy "Glomarization," this means making sure that the only possible response that the agency can give to the request is to neither confirm nor deny that any responsive record exists. If the request merely seeks any existing law enforcement file on a named individual, this can be so. If the request is broader than that, however, a simple "Glomarization" response simply will not cover it. See FOIA Update, Spring 1991, at 6 ("Glomarization" only "avoids the privacy invasion that would otherwise occur"). For a request that involves more than just a law enforcement file, the agency should take a bifurcation approach to it -- separating the extraordinarily sensitive part of the request from the rest of it.
The obligation to take such an approach is incumbent upon any agency that wishes to avail itself of the extraordinary protection that "Glomarization" affords. For example, in the first case to adjudicate an agency's use of the "Glomarization" defense, Gardels v. CIA, 510 F. Supp. 977, 979 (D.D.C. 1981), aff'd, 689 F.2d 1100 (D.C. Cir. 1982), the CIA took such a bifurcation approach. In responding to a FOIA request that sought any CIA records reflecting its contacts with a named university, the CIA distinguished between "covert" contacts, the existence of which was classified in each case, and "overt" ones, which were not; it "Glomarized" only as to the former category, processing records that responded to the remainder of the request in a conventional way. See 689 F.2d at 1102-03.
So, too, should agencies distinguish between any law enforcement records responsive to a third-party request, the very existence of which can be privacy-sensitive, and any non-law enforcement records that might be responsive to that FOIA request. This was illustrated in a recent decision by the Court of Appeals for the D.C. Circuit, Nation Magazine v. United States Customs Serv., 71 F.3d 885 (D.C. Cir. 1995). In that case, the FOIA requesters submitted a third-party request to the Customs Service that in general terms sought any records on a named individual -- former presidential candidate H. Ross Perot -- but that went on to specify that the requesters "were 'especially interested in documents and records that pertain to [reported] offers by Mr. Perot to assist the Customs Service in the interdiction of illegal drugs.'" 71 F.3d at 888. Toward that end, they even identified one particular document that they believed existed in that latter category. See id. at 888 n.1, 890. Given such a request, the D.C. Circuit found an across-the-board "Glomarization" response to be inappropriate, observing that "records discussing offers of assistance may implicate a less substantial privacy interest than any records associating Perot with criminal activity." Id. at 894. In other words, part of the request was not so very sensitive. See also Nation Magazine v. Department of State, No. 92-2303, slip op. at 23-24 (D.D.C. Aug. 18, 1995) (FBI required to search for any "noninvestigative" files on Perot); accord Reporters Committee, 489 U.S. at 757 (involving "Glomarization" bifurcation along "public interest" lines).
	General requests. FOIA requests that merely seek records pertaining to a named individual, without any elaboration, can be given a standard "Glomarization" response.
	Specific non-law enforcement requests. At the other end of the spectrum, any request that is specifically and exclusively directed to an agency's non-law enforcement files (e.g., one aimed at personnel files only) should receive purely conventional treatment, without "Glomarization."
	Mixed requests. Most importantly, FOIA requests that do more than simply seek law enforcement records on a named individual -- and therefore do not solely implicate the abstract fact and attendant privacy interests that underlie privacy "Glomarization" -- must be bifurcated. Simply put, a "Glomarization" response is appropriate only insofar as a FOIA request requires it. Insofar as any particular request seeks more than just information from an agency's investigative files pertaining to an individual, that request should be handled in two separate parts -- one part with a "neither confirm nor deny" response and the other part with a conventional record-processing one. See, e.g., Tanks v. Huff, No. 95-568, 1996 U.S. Dist. LEXIS 7266, at *4 (D.D.C. May 28, 1996) (upholding privacy "Glomarization" after agency bifurcated between aspects of request). And if there is any doubt about the scope of a request in this regard, the agency should "seek additional information from the requester to assist in resolving questions." FOIA Update, Winter 1986, at 4 (advising such step for purposes of privacy "Glomarization"); see also FOIA Update, Fall 1995, at 4-5 (advising such step for any question of request's scope).
These rules apply most directly to the federal law enforcement agencies and agency components whose principal function is criminal law enforcement. Because the touchstone principle for privacy "Glomarization" is the right not to be unfairly "tarr[ed] with the brush of criminal activity," Nation Magazine v. United States Customs Serv., 71 F.3d at 894 n.8, these agencies are the principal users of this special response. In the case of other agencies for whom law enforcement is but one component of their overall function, bifurcation might be required more on a component-by-component basis than along the lines of different parts of a FOIA request. See, e.g., Grove v. Department of Justice, 802 F. Supp. 506, 510-14 (D.D.C. 1992) (upholding privacy "Glomarization" by Department of the Navy after it bifurcated between "administrative documents" and those held by its investigative component, Naval Investigative Service).
In sum, any agency that ever uses privacy "Glomarization" must remember that it applies only within the realm of law enforcement files and can be used only with close attention to the form and phrasing of the FOIA request at hand. Because an agency should construe the terms of a FOIA request broadly, see FOIA Update, Fall 1995, at 3, and because, as has been recognized in the "Glomarization" context, the scopes of FOIA requests "are limited only by the ingenuity brought to bear to fashion them," Gardels v. CIA, 510 F. Supp. at 980, special care is required to ensure that this exceptional privacy-protection tool is not overused.