Offshore work isn’t for the diffident. Crew members that spend a significant amount of time on a seagoing vessel assume dangerous jobs and are also exposed to serious injury at sea. These injuries could permanently diminish their quality of life by taking away their livelihood. Employees on seagoing vessels are considered “seamen.” And while they work just as hard land-based workers, seamen are not eligible for worker’s compensation benefits under state or federal law. This means that if they suffer work-related injuries, they’re not granted funds through their state’s workers’ compensation system. These offshore workers have special legal protections and can obtain compensation for a work injury through The Jones Act.
The Jones Act, 46 U.S.C § 30104, was signed into law in 1920 under the legislation known as the Merchant Marine Act of 1920. It is a federal law that gives offshore employees the right to sue their employer for personal injury damages in the event that they get injured in the course of their employment. A significant section of the legislation protects seamen by allowing them to hold their employers responsible, especially if their injuries resulted from negligence. In today’s shipping industry, this section of The Jones Act is very active and obliges employers to provide reasonably safe working environments for their employees. The Merchant Marine Act of 1920 entitles seamen and their surviving spouse or dependents to file a lawsuit if an injury or death is caused by the negligence of a crew member or ship owner. If an employee is hurt while offshore, he/she can file a lawsuit against the employer in order to receive compensation for lost wages, medical bills, as well as other damages.
There are two types of maritime workers: those who qualify as seamen and those who work on or near the water. The Jones Act covers seamen while the general maritime law covers individuals in the other group of maritime workers. The kind of compensation an injured maritime employee can obtain is determined by his/her category.
Difference between Workers’ Comp Claim under the Jones Act and Workers’ Comp Claim for Land-Based Employees.
When it comes to workers’ compensation claims for land-based employees, fault and responsibility are not factors. But, in a Jones Act claim, the employer must have acted negligently and the employee must be prepared to provide evidence to prove the negligence. The evidence provided could also apply to operators, officers, crew members, or any other employee on the vessel.
However, the employer doesn’t have to be exclusively responsible. The injured employee can be partially negligent but still be compensated. Provided that you can demonstrate that your employer’ negligence directly contributed to the injury, you’re covered under the Jones Act. The Jones Act provides seamen a benefit over employees in other industries because it covers all lost wages and the cost of medical bills, without considering how long an employee has been out of work. But with employees covered under state or federal workers’ compensation systems, they have their disability benefits provided and medical bills paid only if they have been off the job for a few days.
The Jones Act Covers Seamen
All private mariners who take part in the export or import of goods are deemed part of the Merchant Marine. Given that employees at the sea aren’t covered by terrestrial law, The Merchant Marine Act provides means for seafaring workers to sue their employers for damages suffered on the job. In general, the Jones Act covers seamen. These are individuals who spend a significant amount of their time working on a seagoing vessel (almost any type of boat or ship) that is in “navigation.” Any individual who works on navigable waters and spends at least 30 percent of their work time contributing to the work of a vessel in navigation is considered a seaman and is protected under the Merchant Marine Act.
Vessel in Navigation
A vessel “in navigation” basically implies that the vessel has to be:
- on navigable waters,
- capable of moving, and
- in operation.
However, the vessel does not have to be at sea or moving for an individual to be considered a seaman. The main requirement is for the vessel to be capable of moving when being sailed or under its own power. A vessel in navigation can’t be out of the water up on blocks or in a dry dock, but it can be tied up at a dock or mooring.
On the other hand, “navigable waters” is a term that refers to waters that are capable of being utilized for foreign or interstate commerce. This includes almost any large water body (such as oceans) or all waterways that are connected directly into the water. Landlocked lakes can also be considered navigable waters provided they are connected to a river flowing into another state or basically extend into another state. For instance, California’s rivers, inland lakes, and harbors qualify as navigable waters. Los Angeles River, Los Angeles Harbor, Alamitos Bay, and Ballona Creek are examples of navigable waters in Los Angeles County.
Seamen who can recover damages from accidents and injuries under the Jones Act include captains, mates, crew members, officers, engineers, bartenders, drillers, divers, anchors, deckhands, stewards, cooks, and fishermen.
Contribute to the Work of the Vessel
An employee is considered a seaman if he/she contributes to the work of the vessel. This means that the worker plays a significant role in the accomplishment of the vessel’s mission. It’s quite difficult to think of a vessel crew member who doesn’t contribute to the work of the vessel. The only type of employee that may be in such a situation might be an administrative support staff of the vessel owner and who is on the vessel during one of its trips.
Spend at Least 30% of the Total Employment Time on the Vessel
In order to qualify as a seaman, the employee must spend 30% of his/her work time on a vessel or fleet of vessels under common ownership. For instance, a person is a seaman if he/she works 50% of the time in his/her company’s office managing the company’s fleet, 20% of the time on the vessel and another 20% on vessel B, which is under the same fleet. As such he/she will be covered by The Jones Act if he/she becomes injured while working in one of the vessels.
How the Jones Act Protects Seamen
The Jones act obliges a mariner’s employer to:
- Provide a reasonably safe working environment, and
- Use ordinary care to maintain and keep the vessel in a reasonably safe condition under the circumstances.
Therefore, if the seaman’s captain or co-worker is negligent and a seaman is injured as a result, the employer is liable under the Jones Act and can be sued by the injured worker. Negligence is when a seaman is injured because employers or coworker takes unreasonable risks. A seaman would be unable to hold their employer liable if the seaman cannot prove that negligence was a cause of the seaman’s injury. The wrongfulness of the conduct is crucial and helps determine the amount of compensation that an employee will receive. Examples of unsafe situations or conditions that may result in a Jones Act lawsuit include:
- Poorly maintained equipment
- Inadequate training of crew or captain
- Assault by a fellow co-worker
- Oil, grease or other slippery substances on the ship’s deck
- Failure by the employer to provide the crew with the appropriate equipment
- Unsafe work methods
- Broken equipment
For example, if the deck was just mopped and hence slippery, the deckhand ought to place a caution sign in front of the mopped area. But if there was no sign and another seaman slips and breaks his leg, the employer may be sued for the injury because the deckhand acted negligently and failed to notify crew members that the deck was going to be slippery.
The employer can even be sued for hiring or failing to fire a crew member who has developed a reputation for being violent.
Unseaworthiness and Maritime Law
The term “unseaworthiness” under maritime law may have a slightly different meaning from how it’s used in the marine industry. A seaworthy vessel, under maritime law, refers to a ship whose equipment, hull, and crew are adequate in design, character, and maintenance, and in good condition to perform their designated functions in the ship’s operation. It is important to note that unseaworthiness doesn’t mean that the vessel cannot be navigated.
A vessel is considered unseaworthy if it doesn’t offer a seaman with safe and suitable equipment necessary to execute his/her work or fails to provide a safe place in which to work. Seaworthiness has nothing to do with negligence. The employer will still be held liable irrespective of whether they acted reasonably or not. A vessel is unseaworthy if any part of it or the entire vessel is faulty and therefore not fit for its designated function. If an employee is injured because some condition or aspect of the vessel was not reasonably fit for its designated purpose, he/she may file a lawsuit against the employer.
Vessel Owner’s Absolute Non-Delegable Duty to Provide a Seaworthy Vessel
A vessel owner has a duty to provide employees with a seaworthy vessel as well as a seaworthy crew. If the crew, vessel, or equipment is unseaworthy and the seaman is injured, the vessel’ owner is responsible to the seaman in damages. It’s worth noting that it’s not the seaman’s employer’s duty to furnish him/her with a seaworthy vessel, but the absolute non-delegable duty of the shipowner. And so, in case of an injury, a seaman has two potential targets for suing: the owner of the vessel and the employer. In most cases, this is the same individual or company, but there are cases where they’re two separate individuals or companies.
Maintenance and Cure
Under The Merchant Marine Act, maritime employers are required to provide to provide care for injured seamen irrespective of who was at fault during the incident. Maintenance refers to the costs incurred by a seaman while he/she is recovering from the injury. It can include the costs of traveling to and from a medical center for treatment as well as expenses such as the seaman’s mortgage or rent, homeowner’s insurance, utilities, property taxes, and food. However, this does not cover things like car payments, internet, or telephone.
Cure, on the other hand, relates to the costs associated with the injured seaman’s medical treatment. It can include the costs of medicines, hospitalization costs, and doctor’s bills. It is the employer’s obligation to pay the injured seaman’s maintenance and cure until they attain a maximum medical improvement.
“Burden of Proof” Under The Jones Act
In standard negligence cases such as personal injury cases, the plaintiff must demonstrate that the defendant’s negligence was the main/proximate cause of the injuries suffered. This means that the plaintiff must prove that the plaintiff’s injury was significantly caused by the defendant’s negligence.
However, the key aspect of the Jones Act is that a plaintiff’s burden of proof is much lower. To prove causation, the injured seaman is only required to prove that the employer’s negligence somehow contributed to the plaintiff injuries, no matter how small the contribution was. Regardless of whether there were other significant causes of the injury, the employer would still be liable for the injuries and the plaintiff would still be eligible to recover damages against the employer, even if the employer ‘s negligence was a 1% cause of the plaintiff’s injury.
The Jones Act Claim Process
- Report the Injury
Under Federal maritime law, injured seamen are required to report any work-related injury within a period of 7 days. In the event that you get hurt while at work, you should inform the captain or a supervisor about the injury as soon as possible. This is important because most insurers don’t really like cases where the victim fails to report the accident immediately. Failure to report within 7 days can hurt your case because employers and insurers assume that you weren’t really all that hurt if you did not report the accident immediately. So, if you’re injured in the course of employment and you believe that the injury may affect your performance and cause you to miss any work, report it immediately. Don’t wait.
- Complete the Company’s Accident Form
As an injured maritime mariner, you’ll be required to fill out an accident report. You should be careful when filling out this report because even the slightest mistake could ruin your chances of recovering damages. At this point, it’s important to work with a Los Angeles Jones Act Attorney who can provide reliable legal counsel on this area. For instance, an attorney will tell you to wait until you’re feeling better in order to fill out the form.
Company accident reports typically contain a section for who is at fault. This a challenging section. Failing to indicate that the company was at fault may hinder your capacity to prosecute a Jones Act case. On the hand, the company may choose not to rehire you for another trip if you indicate that the company was at fault and then it turns out that the injury you suffered was very minor such that a Jones Act claim is not a consideration. If you’re not comfortable writing the company was at fault, it may be wise to indicate that you’re not sure and that you’ll need more time to think about it.
After an accident, the insurance company will use all means possible to try and get a tape recorded and/or written statement from you. Try not to provide one.
- Get Medical Treatment
You need to get medical treatment after an accident that leaves you with injuries. If you’re badly hurt at sea, your employer should have you evacuated to a hospital by a helicopter. Your ship must provide proper medical treatment. If you’re injured in a foreign country, you should take control of your own treatment once you return to the United States. Ensure that you see a doctor, attend all appointments, and follow all of the doctor’s orders. If you fail to do any of these, the insurance company will assume that you have recovered. What’s more, the insurer may hire an investigator to take pictures or videos of you doing something that’s against what the doctor ordered. Prompt and thorough treatment is highly important because your medical records will play a significant role in your claim.
If you’re having trouble getting medical treatment or the insurance company fails to pay your maintenance and cure, you need to retain the services of a Workers Compensation Attorney Law Firm.
- Settle the Case or File a Lawsuit
It’s generally not a good idea to settle a Jones Act case until you’ve reached a point of maximum medical improvement and have finished your medical treatment. This due to the fact that you don’t really know the amount you should settle for until you know how well you’ll recuperate from the injury. Actually, you should only settle the case after you’ve returned to work as you get to see if you’ve recovered enough to resume your job duties.
If the case can’t settle, you’ll have to file a lawsuit and this will take about 14 to 16 months to get a trial.
Compensation and Benefits Covered Under The Jones Act
- Medical Expenses
The Jones Act covers present and anticipated future medical expenses incurred by the injured seaman. This may include medications, X-rays, exams, physical therapy, travel expenses to physician’s appointment, rehabilitation, surgery, specialized equipment, mental health treatment, counseling and more.
- Loss of Earnings
Lost earnings cover present earnings and as well the loss of earning capacity later on, including the likelihood of occupational advancements and pay raise. It also includes workers benefits like 401k, vacation time, and/or pensions. Determining future lost earnings is not as easy as figuring out current lost earnings. It normally involves an economic professional calculating future cost of living expenses and what the average pay would be for the worker in the future.
- Pain and Suffering
Under the Jones Act, pain and suffering involve physical pain as well as mental anguish. For example, most individuals who undergo an amputation, especially those resulting from a traumatic accident are at a higher risk of experiencing extreme mental anguish. There isn’t a formula to establish the amount of compensation a seaman is entitled to for pain and suffering. Numerous aspects such as the extent of severity of the injuries, the extent of the mental anguish that resulted to the injury, and the physical pain involved will be taken into account when determining the amount to be compensated.
- Unearned Wages
If you become ill or are injured in the course of employment at sea, the employer must pay you wages you would have earned if not for the illness or injury. This is the amount of money you would have earned at the end of the voyage (or mutually agreed upon employment period) or the end of your normal pay period. If you’re unable to work until the agreed upon employment period comes to an end, your employer should still pay you until the end of that period. A Jones Act attorney can help you determine what you should have earned during the period and what you’re owed.
- Punitive Damages
A Jones Act lawsuit may also entitle an injured seaman to punitive damages in addition to the already compensable amount. This is usually meant to punish the employer and deter other employers from ignoring the safety of their employees. As provided by The United States Fifth Circuit Court of Appeals punitive damages are permitted in Jones Act cases particularly if the employer is found to deliberately and irresponsibly break their obligation in providing their employees with safe working conditions and a seaworthy vessel. To successfully recover punitive damages, the plaintiff must prove that there was indeed intentional and reckless disregard for the safety of the employees.
Other damages under the Jones Act include:
- Loss of enjoyment of life
- Loss of use of a body part
- Costs of retraining
- Lost earning capacity
There’s no limit to Jones Act benefits. The judge or jury has the discretion to determine the amount of your fair compensation.
Finding a Jones Act and Merchants Marines Attorney Near Me
Working on the water is a risky job. Seamen face employment risks such as slip-and-fall accidents, repetitive motion injuries, overexertion, and dangers from falling objects. If you’ve been injured while working on a seagoing vessel, an attorney can help you understand your rights and get the most compensation possible for your injuries. The lawyers at Workers Compensation Attorney Law Firm have handled many Jones Acts claims. We work hard to get our clients reasonable and fair settlements. This cases can become complex so easily. At Workers Compensation Attorney Law Firm, we take pride in advising our clients about the value of their claims. We blend our experience, knowledge of the law, and thorough preparation in order to get good settlements. Most of the cases are settled out of court but if your case goes to trial, we’ll be ready to present your case to a judge or jury.