Ordinarily, in a maritime case involving personal injury or property damage, the issue of liability is dependent upon whether the defendant owed a duty to the injured party, whether the duty was breached, and if the injured party suffered damage.  The duty or standard of care is usually one of reasonableness, i.e., did the defendant act in a manner consistent with that which a “reasonable man” would employ.

However, there are situations in which the “reasonable man” standard is replaced with one of negligence per se.  In such situations the conduct of the defendant is judged by whether his conduct conformed to a specific standard set forth in a federal or state statute or regulation.  The statute or regulation is presumed to establish a “minimum standard of care,” and if the defendant is found to have violated the statute or regulation, he is guilty of negligence.  Typically, the statute or regulation must address a specific type of conduct.  Violation of general safety regulations will not constitute a basis for application of negligence per se.

There are five elements that the plaintiff must establish to invoke negligence per se.  They are; (1) a violation of a safety regulation (this may include Coast Guard and/or OSHA regulations); (2) the plaintiff must be a member of the class of persons for whom the statute is intended to protect; (3) the injury or damage must be of the type against which the regulation is intended to protect; (4) the violation is unexcused by mitigating factors; and (5) the damage or injury was caused by failure to comply with the regulation.  If the plaintiff proves the existence of these five elements, the defendant may be negligent as a matter of law.

The doctrine of negligence per se may also shift the burden of proof.  For instance, when there is a violation of a Coast Guard regulation dealing with Rule of the Road, the party that committed the violation has to prove to the satisfaction of the court that the violation could not have played any role in causing the casualty.

In a Jones Act case involving injury to a seaman, if the employer has violated a regulation enacted for the safety of its employees which violation results in injury, the injured seaman cannot be held guilty of any contributory negligence.  What this means is that even if the injured seaman was 99% at fault in causing his injury and his employer’s violation of a safety regulation contributed 1% to the injury, the negligence of the employee is discounted and the employer is 100% responsible.  Also, in Jones Act cases, some courts have held that it makes no difference if the type of statute violated was one intended to protect the safety of the crew from personal injury.  If the statute or regulation was violated and the seaman injured, that may be enough to invoke negligence per se.

In the matter of longshoremen or other non-crew members injured on a vessel, courts have held that in order for violation of a safety statute to constitute negligence per se, the injured person must be one of the class of persons the statute is designed to protect.  Thus, persons who are not crew members who are injured on a vessel may not be able to claim protection of OSHA regulations, which are intended to protect the employees of the “owner” of the work site.   The courts have, however, allowed evidence of OSHA regulations as a guide to determine the “reasonable man” standard of care.