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Jones Act/Longshore Act/Seaman’s Injuries

The Jones Act is a federal statute that provides a cause of action for injured seamen. It is not Texas workers’ compensation. It does not require payment regardless of fault. Unfortunately, a seaman must prove negligence or fault on the part of the vessel’s owners, operators, officers, and/or fellow employees or by reason of any defect in the vessel, its gear, tackle, or equipment – i.e. unseaworthiness – of the vessel.

This means that the employer must do something unreasonable, negligent, or fail to perform a reasonable act that would have prevented injury in order for the seaman to prevail. Only a seaman can recover under the Jones Act. A seaman is a member of the crew of a vessel or someone who assigned to a vessel or a fleet of vessels. For example, those who work on tankers, freighters, tugs, supply and crew boats, barges, and fishing vessels as a member of the crew are considered seamen.

Jones Act law is unique and, as a result, you need a lawyer that understands these laws and how they apply to your situation.

Most land employees are limited to worker’s compensation benefits for on-the-job accidents resulting in personal injury or permanent or temporary disability. By contrast, the Jones Act gives the working seaman the right to his or her full damages for the negligence of the owner, the master, or fellow crew members. In cases where the vessel’s unseaworthiness is found to have caused the injury, an independent ground of liability will support a claim for damages against the owner.

Negligence can include:

  • Failure to adequately hire, train, or staff the vessel
  • Not providing proper or adequate gear, protective clothing, or equipment for the job
  • Failure to follow or enforce safety measures, including the removal of safety features on machines
  • Improper maintenance of the ship or its equipment
  • Working in heavy weather

Unseaworthiness can include:

  • Poorly maintained decks, gangways, and passageways, including slippery surfaces
  • Dangerous or extreme work methods, including excessive lifting
  • Inadequate crewing or undermanning of the vessel
  • Loose or improperly stored lines, wires, and cables
  • Defective hulls, rails, and bulkheads
  • Insufficient lifeboats and malfunctioning emergency response gear

The Origins of the Jones Act

1920’s
In 1920, Congress passed a statute that was signed into law that extended the Federal Employer’s Liability Act (FELA) to seamen. This statute is now commonly referred to as the Jones Act. Interestingly, FELA was originally enacted to protect the rights of individuals who worked for the railroad.

In the days when sailing ships ruled the waves, the workers who served on board did so at their own risk. Illness and death were not uncommon, yet well into the 20th century, injured seamen and their families only had minimal legal recourse. Can you imagine? The collection of damages demanded a proof that the ship on which they had served had not been “seaworthy.”

Even in cases when this was clear, the courts tended to obey the dictates of the “fellow-seaman” doctrine, relieving a ship’s owners of liability by claiming negligence on the part of its crew.

Section 33 of 1920’s Merchant Marine Act changed all that. Popularly known as the Jones Act, its provisions specifically allowed any seaman who suffered injury or death while performing his duties at sea to bring a claim against the ship’s owner.

In protecting the rights of seamen, the Jones Act set an important precedent. There was only one problem, and it was major: Although the act meticulously outlined the various rights of seamen, it failed to define exactly who was a seaman.

What Constitutes a Sailor?

1940’s
In 1940, the Supreme Court ruled on the matter, declaring that a seaman was only a seaman if his duties pertained specifically to the navigation of a seagoing vessel. This still left individual courts at liberty to define vessels and sailors as they wished.

The proliferation of dredging operations and offshore drilling rigs created a demand for more stringent guidelines. These vast changes have resulted in a generally accepted set of rules that must be met by any seaman hoping to recover personal injury damages under the Jones Act.

The Modern-Day Seaman

Today’s courts normally consider a seaman a worker whose shipboard labors fulfill a vessel’s mission by contributing to its function. This definition rules out most dock workers. Although they do perform some of their duties on board ship, courts have decided that such laborers play no part in the actual functioning of a vessel. Some workers who suffer shipboard injury during transport to or from a job that they perform on land. Some contractors and others performing shipboard labor on a temporary basis.

Often, a worker’s qualification as a seaman will hinge largely on what percentage of his duties actually takes place on board a ship. Further, at the time of his injury, a plaintiff seeking protection under the Jones Act must have suffered his injuries while in the employ of the ship’s owners. All others will need to seek recourse through the common law or some other applicable statute.

What Constitutes a Vessel?

To meet the definition of a vessel, a conveyance must have the ability to move or be moved in navigation. Although this would seem to cover a wide range of, it does exclude such things as fixed oil platforms that are incapable of providing transport.

Submersible oil rigs, on the other hand, can move in the water, and this fact qualifies them for coverage under the Jones Act.

The exact interpretation of the Jones Act often remains the province of the courts, and given the speed at which technology advances, problems could easily continue to arise. Nevertheless, the act’s protections remain valuable for anyone earning his livelihood in the business of nautical navigation.

Benefits for Offshore Workers

The Jones Act, in some respects, is a very favorable set of statutes for offshore workers. Some of the benefits include a saving to suitor’s clause, a featherweight burden, a pure comparative fault approach to proportionate responsibility and joint and several liability.

The following is a basic overview of these unique aspects of the Jones Act:

The saving to suitor’s clause allows an injured seaman to file his or her lawsuit in state or federal court and the employer must accept the seaman’s choice of forum.

The featherweight burden is a simple way of saying that if the negligence by a seaman’s employer is shown and that negligence played even the slightest part in producing the injury than the employer is liable for damages regardless of whether the injury was foreseeable by the seaman.

Pure comparative fault means that if a seaman’s employer is in any way responsible for the accident then the employer must pay damages to the seaman. Under most state laws, if the injured person is found to be at least 51% at fault for the accident then that individual does not get to recover any damages.

Joint and several liability means that a seaman can hold his employer responsible for all of his damages (except the portion attributable to the seaman) even if the employer was only partially responsible and some other company bears equal or greater responsibility. The need for joint and several liability only comes into play when there are multiple companies or individuals responsible for a seaman’s injuries. However, in the maritime context, it is extremely helpful because often times an at-fault company may be based half-way around the world. With joint and several liability, a seaman does not have to sue such company in order to obtain a full recovery because the employer is held responsible for all of the seaman’s damages (less any portion of fault allocated to the seaman).

DAMAGES:
When the U.S. Congress adopted the Jones Act in early 1920, seamen hailed the provisions that allowed them to recover damages from their employers. While maritime law recognized the duty of a ship’s owner to provide its crew with a safe and seaworthy vessel on which to serve, it had until then absolved the crew’s employer of responsibility in cases of death or injury at sea.

MAINTENANCE AND CURE:
General maritime law had traditionally given an injured seaman the right to seek medical care and daily living expenses from a vessel owner in the form of a remedy known as maintenance and cure. Its requirements bound vessel owners not only to pay the injured party’s wages for the remainder of the voyage but also to cover all medical bills and living expenses during his recovery. Under the Jones Act provision to provide maintenance the employer is obligated to pay a daily maintenance fee while you are out of work. This fee in the past has been as low as EIGHT DOLLARS a day. Contrary to what you might have been told, this fee is not fixed by law. Some employers pay an injured worker’s full paycheck. If you are injured and receiving on the low side of your daily maintenance fee, you’re probably concerned how you are going to live on it. When you are injured on the job, your employer will typically refer you to company approved doctor. You are not obligated to see or accept the diagnosis of a company doctor. Under the Jones Act an injured seaman can see any physician for his care. Injured Jones Act employees have experienced that company approved doctors don’t always provide the full range of medical tests required for a comprehensive diagnosis. Your health may be at stake if you are rushed back to work, even in a temporary or reduced capacity position designed to accommodate your injury. It is not unheard of for an employer to eventually eliminate the reduced capacity position leaving the injured employee without work and without benefits. Of course it’s not in your best interest to return to work until you are fully healed and capable. Can you imagine being forced back to work if you are not well?

Punitive Damages are Not an Option. Below is a more in-depth discussion on the topic.

“Maintenance” is a daily living allowance paid to a seaman while he is recovering from his injury or illness. Maintenance payments continue until a seaman has reached maximum medical improvement or until he is fit to return to duty at his previous level. There is no set daily rate for maintenance, and the rate of maintenance may vary from case to case. Typically maintenance rates are set by employers very low in the range of $30 to $35 a day. A maintenance rate in a seaman’s employment contract is non-binding with the exception of some collective bargaining agreements. Following the Supreme Court’s holding in Atlantic Soundings Co. v. Townsend in 2009 many employers and vessel owners are now paying more appropriate rates for maintenance in the range of $50-60 per day. Paying too low a rate for maintenance may expose an employer and vessel owner to claims for punitive damages.

“Cure” is a shorthand term used for medical expenses associated with a seaman’s injury or illness. In almost all cases, a seaman’s employer must pay all reasonable and necessary medical expenses associated with a seaman’s injury or illness. These expenses may include doctor and hospital bills, therapy expenses, nursing bills, MRI and CT scans, wheelchairs, diagnostic testing, pain clinics, transportation costs to and from the doctor, and other reasonable medical-related expenses. An injured seaman has the right choose his own doctor. The right to cure continues until the seaman has reached maximum medical improvement. Many employers and marine insurance adjusters attempt to wrongfully terminate a seaman’s benefits before they have reached maximum medical improvement. Where there are conflicting medical opinions about whether or not further medical treatment may improve a seaman’s medical condition, maritime law requires those doubts be resolved in favor of granting further treatment.

The duty to provide cure includes the duty to provide reasonable and necessary medical care to a seaman aboard ship. The seaman’s employer must use reasonable care to get a sick or injured seaman to shore for emergency medical treatment. Failure to timely evacuate an injured or ill seaman from the ship may give raise to a claim for negligence and possible punitive damages.

Every seaman who is injured or becomes ill while in the service of his vessel has the right under Federal Maritime Law to “maintenance and cure.” The Supreme Court of the United States has ruled that punitive damages may be awarded against an employer who willfully and wantonly withholds maintenance and cure benefits from a seaman. Maintenance and cure benefits are a no-fault benefit, and the seaman need only prove that he was injured or became ill while working. Seamen do not have to prove negligence to collect maintenance and cure benefits. Similarly, comparative fault does not bar your right to maintenance and cure benefits. There are few defenses to a seaman’s claim for maintenance and cure, and absent willful misbehavior or intentional misconduct – A seaman’s employer must provide maintenance and cure.

Seamen with preexisting medical conditions are not barred from making maintenance and cure claims. If shipboard work aggravated the condition, the seaman may still be eligible for maintenance and cure benefits. Many employers improperly attempt to deny seamen maintenance and cure benefits based upon preexisting conditions. Unless there was a material misrepresentation in a medical questionnaire that would have impacted the employers decision to hire the seaman, benefits should be paid.

Seamen who are injured aboard ship also have a no-fault claim for “unearned wages.” This is a maritime common law right for an injured or ill seaman to be paid wages until the end of the voyage. The length of a seaman’s voyage may be determine by the employment contract. In the absence of a written employment contract, many different factors must be considered in determining the length of the voyage for purposes of unearned wages.

The maritime doctrine of maintenance and cure is based upon maritime common law. In addition to these basic benefits, a seaman who is injured through negligence or unseaworthiness may seek additional compensation for his injuries. A seaman that is injured through negligence is entitled to claim damages against his employer for lost past and future wages, medical expenses, pain and suffering, vocational retraining costs, loss of wage earning capacity, and loss of enjoyment of life. Few accidents aboard a ship or fishing vessel could not have been prevented if proper equipment and safety procedures had been provided and followed. Maintenance and Cure provides seamen with basic benefits, however, it is the Jones Act and unseaworthiness doctrine that provide seaman with the rights to full and complete compensation for their injuries.

Prior to 2009, both maritime law and the Jones Act permitted an injured seaman to seek pecuniary damages, but the law was not as clear on whether punitive damages were available in the context of a failure to pay maintenance and cure. In that year, however, a landmark decision of the U.S. Supreme Court broke new ground in that regard.

The Ruling That Changed the Rules

When the owner of the vessel on which he’d suffered injury refused to pay damages, tugboat worker Edgar Townsend fought back. Citing provisions of both the Jones Act and general maritime law, he sought punitive damages against the vessel’s owner for negligence, wrongful termination, unseaworthiness and failure to pay maintenance and cure.

Townsend couldn’t have known that his case, which reached the U.S. Supreme Court in 2009, would make maritime history.

A Breakthrough in Maritime Law

In its notable decision, the court held that despite previous precedent, punitive damages that had historically been available in common law must also extend to maritime cases, at least in the willful failure to pay maintenance and cure.

It further determined that nothing in the wording of the Jones Act would serve as a basis for overturning the doctrine of common law in providing punitive damages for an owner’s failure to pay maintenance and cure.

Precedent is Set

The 2009 Supreme Court decision provided direction to the admiralty courts that had previously declined to award punitive damages. Today, in the context of a maintenance and cure claim, courts or juries may award punitive damages in instances where the Jones Act employer:

  • Insufficiently investigates a seaman’s claim
  • Curtails the benefits of a seaman who avails himself of counsel or refuses to settle out of court
  • Terminates or declines to continue paying an injured seaman’s medical expenses before a qualified physician has attested to his attainment of maximum possible cure
  • Neglects to reinstate the benefits of a seaman who has received a new diagnosis or undergone a change in medical condition
  • The positive effects of the U.S. Supreme Court’s decision in the Townsend case have already become apparent. In the year 2012, Missouri’s Eastern District Court ruled against a vessel owner who attempted to dismiss a claim of punitive damages for liability. This victory for the claimant not only reinforces the precedent set in 2009; it also represents another milestone in maritime precedent by increasing the number of remedies available to seamen injured at sea.

LONGSHORE ACT

The Jones Act, enacted in 1920, is perhaps as noteworthy for what it failed to address as it was for what it did.

The Jones Act vs. The Longshore Act

Seamen’s rights advocates applauded the act for allowing maritime workers to hold their employers accountable for death or injury suffered at sea. Prior to its enactment, although existing maritime laws did consider a vessel’s owner responsible for providing on-board workers with a seaworthy vessel on which to labor, their employers had never been subject to liability.

Workers covered under the Jones Act include but are not limited to:

  • Seamen and shipmasters
  • Officers
  • Harbor pilots
  • Ship-board technicians
  • Helicopter pilots
  • Workers on tugboats, barges, ships and supply boats

In more recent times, the courts have extended the definition of seaman to include oil workers who labor on semi-submersible or jack-up offshore oil rigs. To qualify, these apparatuses must be unattached or detachable in any way to the ocean floor and capable of movement under tow in navigable waters.

What the Jones Act Fails to Do

In spite of its many benefits, the Jones Act suffers from one remarkable flaw: It has never clearly defined the word seaman. This omission has left its interpretation up to the courts on a case-by-case basis. However, despite that ambiguity, one fact has always remained unquestioned; the protections of the Jones Act have never extended to shipbuilders or dockworkers.
Since standard workers’ compensation plans also failed to cover these employees, the federal government stepped in, enacting for their security the Longshore and Harbor Workers’ Compensation Act of 1927.

How the Longshore Act Takes Up the Slack

The benefits of the Longshore Act extend to any worker whose standard occupation involves the building, repairing, loading or unloading of seagoing vessels. Under its terms, the qualifying injury can have taken place either on board a vessel on navigable waters or on a pier, wharf, shipping terminal or dry dock in close proximity to them.

Workers covered under the Longshore Act include but are not limited to:

  • Dockworkers
  • Harbor workers
  • Shipbuilders
  • Ship repairers
  • Ship breakers

Prior to its enactment, these maritime workers enjoyed little recourse when injured on the job. However, since the Longshore Act exists to close the gaps left by the Jones Act, workers already covered under the latter are ineligible for its benefits. The same is true of any maritime worker otherwise protected by workers’ compensation.

The federal Longshore and Harbor Workers Compensation Act (LHWCA) allows harbor workers (including stevedores, crane operators, longshore checkers, terminal workers, shipbuilders, marine construction workers, vessel repair workers, and others employed in shipyard or waterfront occupations) to recover the costs of medical care and two-thirds of their average weekly wages during periods of disability due to injury on the job. The LHWCA also applies to certain gas or oil rig employees working from fixed offshore platforms.

While these benefits are payable without regard to an employer’s fault, in most cases they will be considerably less than the damages recovered in a negligence action. The LHWCA prohibits the injured dock worker from suing his or her employer, but allows the injured employee to sue a third party – such as a shipowner, or equipment manufacturer – for damages under the general maritime law, or state-law negligence proceedings.

Benefits Under the Longshore Act

The Longshore Act holds the employer responsible for all reasonable medical and rehabilitative expenses of a qualifying employee injured on the job. Additional benefits include payments amounting to two-thirds of the injured employee’s weekly wage. These remain payable for as long as the disability persists.

In case of fatal injury, the act also extends wrongful death benefits to the survivors. A spouse will receive benefits equal to 50 percent of the deceased worker’s average wage with an additional 16 percent in cases involving children.

The act specifically prohibits the employer from engaging in retaliation or discrimination against an injured employee who seeks to obtain his rightful compensation.

The Longshore Act has provided a great benefit to those maritime workers who previously labored with insufficient coverage and largely at their own risk.

If you or someone you love have been injured or killed under the Jones Act, please contact my firm immediately for a FREE initial consultation. We handle maritime accident cases involving crab boats, fishing vessel, fish processors, trawlers, catcher processors seiners, gillnetters, tug boats, oil response vessels, construction barges and dredges, ships, supply vessels, and all other types of vessels.

There will NEVER be a fee unless there is a recovery made!

Gregg S. Harrison, Attorney at Law, PLLC
Greater Houston/Northwest Houston Jones Act and Seaman’s Injury Lawyer
Call for a FREE INITIAL CONSULTATION
Office: 281-929-0110
Cell: 832-797-7600
Email: gregg@greggharrison.com