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When a person thinks of maritime law, the first piece of legislation that comes to mind is the Jones Act, also known as the Merchant Marine Act of 1920. The Jones Act regulates many areas of the maritime industry. One area specifically addressed by the law is personal injury and wrongful death to seamen. Generally speaking, an employer of a mariner is legally responsible if the employer, co-employee, or agent acts negligently and causes injury or death to you or your loved one. If you qualify as a seaman and have been injured on the job, you may be able to file a claim under the Jones Act. Likewise, if you lost a loved one, who was a “seaman,” to an accident caused by another’s negligence on the vessel, you may be able to file a wrongful death claim under the Jones Act.
Our maritime personal injury lawyers at Gilman & Bedigian will confirm if the Jones Act is the right choice of law and then help you navigate the intricate web of qualifications and filing.
The Jones Act: Its Purpose
According to the Jones Act, 46 U.S. Code § 30104:
A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer.
The Jones Act requires proof of negligence in order for an employer to be responsible to compensate an injured party for all damages sustained. The purpose of the Act initially was the promotion of maritime employment. The dangers of working at sea are well known, and by offering protection in case a worker is harmed in any way was one means to alleviating fears of working at sea. The benefits under the Jones Act were meant to help grow the maritime industry through reassurances that workers would be covered if injured in any capacity.
The Jones Act: Available Monetary Damages
If your employer was negligent, then under the Jones Act, an injured seaman is entitled to compensation for damages sustained from that negligence. Compensation can be used to cover any of the following:
- Medical expenses, to include reasonable and necessary expenses associated with physicians, surgeons, nurses, surgery, rehabilitation, therapy
- Future medical expenses, to include reasonably certain future treatment;
- Past and future lost income;
- Impairment of earning capacity;
- Impairment of normal progress in the seaman’s earnings;
- Reasonable value of fringe benefits, to include the value of health insurance, dental insurance, etc.
- Past and future physical pain and suffering;
- Mental pain and anguish, to include humiliation, shame, and embarrassment, etc.;
- Physical disability or impairment of bodily functions.
The Jones Act: Qualifying as a Seaman
Workers who qualify as seamen are covered by the Jones Act. Generally, any worker who contributes his trade or skill to the operations of the vessel or fleet is most likely to be defined as a seaman. There are certain qualities a worker must possess, however, to be deemed a seaman for the benefits afforded seamen under the Jones Act. These qualities include:
- A worker in both traditional maritime trades or non-maritime trades;
- Who works a significant amount of his or her time (generally 30%);
- And whose work contributes to the main objective of the vessel or fleet; and
- Which vessel is in navigation.
If you meet these qualifications, then you are likely able to file a claim under the Jones Act. There may, however, depending on your status and location, be able to file a claim under another piece of legislation that may provide better benefits to you or to your family. Because there are choices, there is a danger of assuming the Jones Act is the most beneficial choice of law under which to file a claim.
Maritime Trades that Qualify under the Jones Act
Seamen can constitute a number of different positions, both traditionally recognized as maritime occupations and non-traditional occupations that are now part of the overall maritime industry. A seaman does not have to be someone who actually and directly navigates or operates the vessel, but can include anyone working on the vessel.
Traditional Maritime Occupations
- Able-bodied seaman (ABS)
- Chief, Second, Third Mates
- Sea Captain
- Chief Engineer
- Chief Harbourmaster
- Commercial Fishermen
- Food Processors
- Maritime Pilot
- Master Mariner
- Ordinary Seaman
- Ship Chandler
Non-Traditional Maritime Occupations
- Hairdressers (e.g., on cruise ships)
- Bartenders (e.g., on cruise ships)
- Chefs (e.g., on cruise ships or floating casinos)
- Welders (e.g., on jack-up vessels or pipe laying vessels)
- Wire line operators (e.g., on jack-up vessels)
- Dive instructors (e.g., on charter sport dive vessels)
- Dive masters (e.g., on charter sport dive vessels)
- Dive guides
- Commercial divers (including divers from oil platforms)
- Roustabouts (e.g., on oil rigs)
- Crew on ocean racing yachts
- Computer software technicians (if on a water vessel)
The above are only examples of what kinds of traditional or non-traditional occupations that can qualify for compensation under the Jones Act. As technology and equipment advances, occupations will change as well. The above-qualifications listed to describe what it takes to be defined as a seaman are broad and vague enough to include the changing job descriptions and titles of those persons working in the maritime industry.
To qualify for compensation, however, is not dependent only on job title but on the status of the maritime vessel.
Maritime Vessels that Qualify under the Jones Act
One of the qualifiers for compensation under the Jones Act is a qualifying vessel, which – to qualify – must be “in navigation.” There are numerous types of water vessels that qualify, not just ships. In order to qualify as a vessel in navigation under the Jones Act, there are four qualifiers: (1) afloat; (2) in operation; (3) capable of moving; and (4) on navigable waters.
- The vessel must be afloat. To be afloat, the vessel must be in the water and “floating.” If the water vessel is moored to a dock or terminal, it is still considered to be in navigation so long as it is floating on water, is under corporate ownership, and is carrying out the tasks it was meant to carry out. If the water vessel is being refitted or repaired and, thus, stationed on a drydock, it is not legally in navigation because it is not floating. If an accident occurs while being repaired, the injured party can likely file a claim under the Longshore and Harbor Workers’ Compensation Act or general maritime law, but not under the Jones Act.
- The vessel must be in operation. To be in operation, the ship or vessel must be a working vessel, and not in repair or used for some other purpose but for the purpose of being operated on the open water; in other words, it must be used to carry out the business of the maritime industry. If being repaired, it is not operational, and therefore is not in navigation for the purposes of the Jones Act and qualification for compensation.
- The vessel must be capable of movement. The vessel must be capable of movement or used as a means of transportation on water, but the vessel is not required to be in motion, only to possess the quality of being capable of movement. Thus, platforms that are floating qualify while platforms that are fixed to the seabed do not qualify. Maritime courts have developed a list of features that can help guide the understanding of what constitutes a water vessel. Some of these vessel-characteristics used to determine a vessel’s capability of movement include:
- Navigational aids
- Raked, clipper, spoon, plumb bows
- Bilge pumps
- Lifeboats or other life-saving equipment
- Sleeping quarters
- Registration with the United State Coast Guard as a vessel.
- The vessel must be in navigable waters. The vessel must be on navigable waters, such as the ocean, rivers, and lakes, the latter of which must be linked to other navigable waters or that connect two or more states. If a vessel is not on water considered to be navigable, like a lake unattached to any other waterways or joining two states, then the vessel does not qualify under the Jones Act.
Types of Jones Act Vessels
- Ocean-going, seafaring ships
- Pile drivers
- Commercial fishing boats
- Offshore oil platform service boats
- Oil drilling rigs, to include jack-up rigs, semi-submersible rigs, drilling ships, tension leg platforms
- Wind turbine platforms
There are other factors that may be considered when determining if, in fact, a vessel is in navigation. These factors will be determined on a case-by-case basis in accordance with the specific facts.
Employment-Related Connection with Vessel in Navigation to Qualify under the Jones Act
The second primary qualification necessary for a worker to be assigned the status of a seaman under the Jones Act is that worker’s relationship with the vessel. The relationship must be significant, both in nature and duration.
The purpose of this qualifier is to distinguish between land-based workers who may from time to time work offshore or work on vessels versus sea-based workers who regularly work on the sea in some capacity in or on a vessel. The underlying purpose of this requirement is to ensure workers who are exposed to the dangers of the ocean at a significantly higher rate than other workers in the maritime industry are afforded the protections of the Jones Act.
Determining what “significant” or “substantial” refers to or means with regard to a seaman’s relationship with a vessel has been a topic of discussion and debate in maritime law. On the one end of the spectrum, if a worker is employed on a vessel daily and consistently by an employer who owns or controls that vessel, then the connection is easily made. However, if a worker workers on different vessels for different companies periodically and inconsistently, then the status as a seaman becomes questionable. Or, if the worker generally and customarily performs land-based worker part of the time as a welder, crane operator, or other land-based work, but aboard a vessel to perform the same tasks periodically, his or her status as a seaman is also questionable.
Over the years, it has become a general rule that workers must spend no less than 30 percent of his or her time in the service of a vessel in navigation in order to qualify for seaman status under the Jones Act. The 30 percent qualifier, however, is only meant to be instructive and is not established or codified as law. Each case will be reviewed on its own merit to determine if the maritime worker does, in fact, satisfy the element of permanent attachment to a vessel in navigation.
Seaman Injured Onshore or in Transit to or from a Vessel
As mentioned, seamen must be employed on a vessel in navigation for 30 percent of their employment time. The other 70 percent of employment time can be spent elsewhere, which begs the question: what if a seaman — as defined under the Jones Act — is injured while working onshore or in transit to/from a vessel in navigation? Will the seaman be covered under the Jones Act? Generally speaking, yes.
To qualify for compensation while onshore, a worker must first and foremost qualify as a seaman. Second, the worker must have been engaged in work for the purpose of the vessel. Maritime workers can also sometimes qualify for compensation if they are working in an office or in a shipyard if their work is in preparation for a vessel’s voyage. To qualify for the latter, however, the worker must have previously been attached to the same vessel and must have been providing services to that vessel when the injury occurred.
To qualify for compensation while in transit to or from a vessel, the worker must first qualify as a seaman, and second, must have been injured or killed during the transit. Seamen must often travel back and forth from the dock or harbor to the vessel. Transportation may be by crew boat or helicopter. The rough water and adverse weather expose workers to dangers. Workers can be killed or injured while moving about on a crew boat when rough waters throw them from one point to another point. Sometimes there are helicopter crashes due to the weather, too, which results in casualties. Finally, but in rarer cases, a maritime worker can be injured en route to a site while in a vehicle. If the maritime employee is in transit from one work site to another work site by vehicle, then the Jones Act protections and benefits will apply.
Negligence and the Jones Act
Generally speaking, employers owe a duty of care to its employees. If that duty is breached through some negligent act and an employee was injured or killed, then the employer must compensate the employee or his or her family. The same is true under the Jones Act.
The Jones Act requires employers to act reasonably in its maritime activities and in its relationship with all of its employees. The employer must provide a reasonably safe and secure place for employees to work. During a voyage, appropriate medical care must also be provided to the crew and any other worker on the vessel.
In light of that duty, maritime workers are not entitled to compensation under the Jones Act simply because they injure themselves while in service to the vessel. The Jones Act does not act as a workers’ compensation program, but offer protection in the event the employer’s duty is breached. To recover damages, the maritime worker must prove that the employer, co-employee or agent of the employer caused the accident or incident and was, therefore, at fault. Under the Jones Act, an employer is “at fault” if the employer was negligent in any given manner.
If it is a maritime contractor, then the contractor would be deemed as at fault under two situations:
- The maritime contractor acted in a manner a reasonably prudent maritime contractor would not have acted.
- The maritime contractor failed to act in a manner a reasonably prudent contractor would have acted.
To determine if an employer or maritime contractor breached his or her duty, the courts often look to standards established by OSHA, the U.S. Coast Guard or other safety authorities in the maritime industry. Examples of acts of negligence according to these safety authorities include the maritime contractor or employer’s failure to:
- Warn of a known or non-obvious danger.
- Provide proper medical care or treatment.
- Maintain and service equipment, gear, appurtenances aboard the vessel.
- Provide a competent and trained master and crew.
- Take measures to counter the dangers of adverse weather and rough seas.
- Provide security for the seamen aboard or in transit to and from the vessel, especially at hostile or dangerous ports.
- Provide immediate and appropriate assistance to a seaman in danger.
- Warn about and provide procedures how to handle toxic or hazardous materials.
- Uphold any relevant laws and regulations.
If any of the above or other negligent act occurs, then the employer or contractor is at-fault and must compensate you for all your damages. If, however, you contributed to the accident or incident that led to your injuries, then that could be a legal defense for the employer or contractor.
Comparative Negligence & Proportionately Reduced Compensation
As a seaman, you have an obligation to act reasonably in any given situation. If you act outside what of a reasonably prudent seaman would act, then you may have breached your duty. If you are in an accident or involved in an incident that causes you harm, but you contributed to your harm in some capacity, then you could be denied recovery or your recovery could be reduced to the extent of your actions.
The Jones Act extends the benefits of the Federal Employers Liability Act to seamen and employers. Under the Federal Employers Liability Act, if the seaman is guilty of contributing to his or her injury, that contribution will not prevent recovery but will diminish the amount of recovery in proportion to the seaman’s own negligence. The employer must demonstrate that the incident and subsequent injuries were caused in part or completely by the seaman’s negligent conduct. If the seaman acts unreasonably or negligently, and that conduct contributes to the injury, it is defined as comparative negligence.
To adjust compensation in accordance with the seaman’s own negligence, you can apply the following steps:
- Determine the amount of damages that you would have been entitled to but for your own negligence.
- Determine the proportion or percentage of your negligent conduct that can be attributed to the cause of your injuries.
- Reduce the amount you determined you could have received by the proportion or percentage of your contribution to your injuries.
- The remaining amount is a good indicator of what you may be entitled to, but of course, determining the percentage can be problematic, and if the case goes to trial, it will be determined by a jury.
For instance, if you are believed to have been 25 percent responsible for the accident and your injury, then your award will be reduced by 25 percent. Thus, if you would have received $100,000 in compensation, your final award would be $75,000.
Causation Under the Jones Act
Though an employer, co-employee, or agent/contractor may be negligent, that negligence does not always lead to damages. Compensation is completely dependent on the accident as the legal cause of your injury. If there is an accident, and you hurt your leg, but it was discovered your leg had already been injured before the accident, then you cannot recover damages. If there is an accident and you were not injured but for an intervening cause unrelated to negligence, then you will likely not be able to recover for damages.
When there is an accident and you sustain injuries, you must establish that the accident was caused by negligence, then you must also prove that this negligence was the direct or proximate cause of the injury. In other words, any improper conduct must be shown to be the cause of the accident that directly led to your injury.
For example, if the employer fails to maintain some equipment on the vessel, and you work with that equipment. Maybe you realize something is wrong with it and stop operating it. Upon leaving the equipment, you aren’t paying attention to your step and subsequently you trip and fall. Your injuries are a direct result of your own negligence and not the employer’s negligence to maintain the equipment.
What to do if injured & want to file a claim under the Jones Act?
If you have been injured and want to file a claim or lawsuit under the Jones Act, time is of the essence. According to the Statute of Limitations, you have only three years from the date of the incident to file a personal injury or wrongful death lawsuit, and you must do so with the proper court. In maritime law, a claim under the Jones Act can be filed in state or federal court, and the choice where to file is significant, not one to make lightly. You will want to determine: (1) how long you will have to wait for a trial date; (2) what the jury pool will constitute; (3) what kind of judge can you expect (liberal or conservative).
In the meantime, within the 3-year time period, evidence can erode or disappear. Thus, you need to find an experienced maritime attorney as soon as possible. An experienced maritime injury lawyer can help you with the following:
- Investigate the accident or incident thoroughly;
- Make sure the claim is filed under the appropriate law;
- Provide documented support and well-crafted, persuasive legal argument in the claim or complaint;
- Make sure the claim is filed in the court or jurisdiction that most benefits you;
- Make sure the claim is filed within the statute of limitations.
Baltimore Jones Act Attorneys
The attorneys at the Maryland law office of Gilman & Bedigian represent seamen who have been injured during the course of their work. You deserve the compensation that the Jones Act affords you, and we know how to advocate your interests to make sure you receive it. Contact us online or call our law office at (800) 529-6162.