- Our Firm
- Legal Services
- Birth Injuries
- Apgar Scores
- Abnormal Birth
- Cortical Blindness
- Midwife Malpractice
- Preterm Labor Negligence
- Birth Paralysis
- Delivery by Forceps or Vacuum Extraction
- Hypoxic-Ischemic Encephalopathy (HIE)
- Neonatal Hypoxia
- Retinopathy Prematurity
- Brachial Plexus Palsy
- Developmental Delays from Birth Malpractice
- Infant Resuscitation Errors
- Neonatal Therapeutic Hypothermia
- Shoulder Dystocia
- Brain Damage/Head Trauma
- Erb’s Palsy
- Infant Wrongful Death
- NICU Malpractice
- Subgaleal Hemorrhage
- C Section Cases
- Facial Paralysis
- IUGR/Intrauterine Growth Restriction
- Nuchal Cord Malpractice
- Torticollis (Wry Neck)
- Fetal Acidosis
- OB-GYN Malpractice
- Uterine Rupture
- Cephalopelvic Disproportion
- Fetal Distress
- Klumpke’s Palsy
- Periventricular Leukomalacia
- Cerebral Palsy
- Fetal Monitoring Malpractice
- Placental Abruption
- Clavicle Fracture
- Group B Streptococcus
- Meconium Aspiration Syndrome
- Free Consultation
Maritime injuries happen, and they happen for a reason, usually, for someone’s negligence, someone’s intentional acts or a hybrid of the two. Proving negligence or intent is not always required, but in some instances, and depending which law is relevant, it will be necessary. This section aims to clarify the importance or necessity of demonstrating negligence or intentional acts when you file a claim under the respective law.
Defining Torts: Negligent v. Intentional
When you are injured by another person, particularly at work, the conduct is a tort or a wrongful act that injures another person or interferes with another person’s property. Torts can be negligent or intentional. Negligent torts occur when a person is harmed by another person’s lack of reasonable care. Intentional torts occur when a person is harmed by another person on purpose. The fundamental difference is state of mind: in a negligence claim, the tortfeasor did not mean to commit the act, but in an intentional tort, the act was deliberate. Sometimes the lines are blurred between intent and negligence. How your maritime personal injury claim proceeds and the type and amount of damage available to you depends on the tort and, of course, the totality of the circumstances.
Tort of Negligence
Negligence claims are the most common form of personal injury claim. A negligence claim requires the claimant to satisfy four elements:
- Duty of Care. The duty of care requires the use of ordinary care to prevent injury to others.
- Breach. The duty of care is breached when a person fails to exercise reasonable care, either through an act or omission incompatible with the standard of care an ordinarily prudent person would exercise.
- Causation. The breach must be the actual and proximate (legal) cause of harm suffered by the injured party.
- Damages. Quantifiable damages must be suffered by the plaintiff that can be remedied by monetary compensation.
Intentional torts are premeditated and/or deliberate acts undertaken in a knowing way that it leads to the injury or wrongful death of another person. In civil cases, if the tort was intentional, then if often means that punitive damages can be requested, but it varies state to state. In maritime law, it depends on the relevant law and the circumstances. Intentional torts are most often illegal acts, which include assault, battery, and among others, false imprisonment.
Identifying if Proof of Negligence or Intent is Required
In many cases in maritime injury law, proof of negligence or intention is not a prerequisite to an injured party receiving compensation. When it is required, it can determine if and how much an injured maritime worker or other person can obtain in a settlement or damage award. Generally speaking, when fault is a condition of a remedy, the injured party can seek more damages than when fault is not necessary.
The Jones Act
Also, known as the Merchant Marine Act of 1920, the Jones Act is a federal law that protects the right of injured seamen to file a claim or lawsuit against an employer for negligence. An employer’s duty of care under the Jones Act is to provide a reasonably safe working environment and to exercise care when providing the same. There are several factors unique to the Jones Act and negligence claims.
- A shipowner’s obligation to his seamen is substantially greater than that or ordinary employers to their employees.
- A shipowner has a non-delegable duty to furnish a safe working environment for his seamen.
- An employer is liable under the Jones Act for “slight negligence.” Slight negligence means no matter how minimal the employer’s negligence was, it is still accountable if a person is injured as a result, even if not actual and/or proximate.
- An employer’s negligence can include such things as but is not limited to unsafe working hours, unsafe working conditions, failure to regularly inspect the vessel or rig, failure to warn employees of hazards, failure to repair dangerous conditions timely and appropriately.
- An employer can also be held liable if it failed to adhere to any statute or regulation, even if the statute was not enacted to protect workers from injury.
- If a person in authority over seaman is negligent or if there is any defective condition of the vessel, the injured seaman can recover damages.
- A shipowner/employer can be liable for the intentional actions of one of his employees that assaults, batters, or otherwise causes another employee/seaman to be injured if the act was committed in furtherance of the employer’s business; if the employer encouraged the act, if the employer knew about an employee’s behavior or tendencies to be violent and therefore the assault, battery, or other act was foreseeable.
- The law is unclear if the shipowner/employer is liable for a seaman who knowingly violates a safety rule, and as a result, inadvertently and negligently inflicts injury upon another employee.
Thus, to recover under the Jones Act, a claimant must prove the tortious act (1) of the employer was “slight” negligence; (2) of an employee, whether negligent or intentional, was committed in furtherance of his or her employment. The law, however, remains unclear if the employer is vicariously liable for a “hybrid tort,” i.e., the tortfeasor knowingly commits or omits an act that negligently causes injury to another seaman.
If the employer is found to have committed a wrong — whether negligent or intentional — the employer can reduce damaged through the demonstration of a preponderance of the evidence that the injured party contributed to the damages. If contributory negligence is proven, compensation may be reduced proportionately.
Unseaworthiness is a common law doctrine that protects, in part, both injured seamen and non-employee passengers who want to file legal claims against a vessel owner or other party for respective negligence. A vessel owner has an absolute, non-delegable duty to provide and maintain a seaworthy vessel. A seaworthy vessel is a vessel that has all its part and equipment reasonably fit for sea and has a crew reasonably adequate and competent to operate the vessel. An unseaworthy vessel, or any of its parts or equipment, is a vessel, or any of its parts or equipment, not reasonably fit for sea or that does not have a crew reasonably adequate or competent to operate the vessel.
The proof required is not necessarily negligence but unseaworthiness. Under this doctrine, a claimant can receive the same damages that would be obtained under the Jones Act plus additional damages. Proof of negligence or intent is not required, only that the vessel, its parts or equipment, and/or its crew was somehow unseaworthy.
If a vessel was found to be unseaworthy, the employer may reduce the claim if it can demonstrate by a preponderance of the evidence that the injured party contributed to his or her damages. If contributory negligence is proven, the remedy for damages can be reduced accordingly.
Maintenance and Cure
Maintenance and Cure is a legal doctrine rooted in general maritime law that provides assistance specifically to commercial fishermen or merchant seamen covered under the Jones Act and who suffer an injury or illness. The injury or illness does not have to be related to work, but must have occurred while in the service of the vessel. Negligence or intentional acts are not necessary components. Contributory negligence will not reduce the maintenance and cure an injured party receives.
Punitive damages — according to a 2009 Supreme Court decision in Atlantic Sounding Co. v. Townsend — punitive damages may also be recovered under maintenance and cure if an employer:
- Insufficiently investigates a seaman’s claim;
- Restricts the benefits of a seaman who retains counsel or refuses to settle out of court;
- Terminates payment of an injured seaman’s medical expenses before a qualified physician has confirmed the seaman has attained maximum possible cure; or
- Neglects to reinstate benefits when a seaman receives a new diagnosis or undergoes a change in medical condition.
Longshore and Harbor Workers’ Compensation Act
The Longshore and Harbor Workers’ Compensation Act protects the rights of maritime workers not included under the Jones Act. These workers include dockworkers, harbor workers, shipbuilders, ship repairers, and ship breakers. If any of the latter workers are injured during the course of the work, the Longshore and Harbor Workers’ Compensation Act provides them with disability benefits, including reasonable medical and rehabilitative expenses and a weekly payment in the amount of two-thirds of the injured party’s average weekly wages throughout the course of the disability. Fault is not required to be proven, therefore, neither negligence or intent must be shown to receive benefits.
Under the Longshore and Harbor Workers’ Compensation Act, compensation may be less than what could have been received if a claim or lawsuit was filed under general maritime law. The Act, however, prevents the injured party from suing his or her employer, including instances where the injured party alleges the employer acted intentionally. An intentional tort could produce punitive damages, but the Longshore and Harbor Workers’ Compensation Act preempts claimants from filing such a lawsuit against an employer.
The Act, however, allows the injured party to file a lawsuit against a third party (e.g., shipowner or equipment manufacturer). These lawsuits would be personal injury claims under general maritime law or state-law negligence proceedings, and as such, will require the satisfaction of all four negligence elements: (1) duty; (2) breach; (3) causation; and (4) damages.
Outer Continental Shelf Lands Act
This Act provides for adequate compensation for workers not covered by the Jones Act and who are injured while working on the outer continental shelf, such as oil rig workers and offshore wind farm workers. To qualify for compensation, a worker does not need to prove fault, regardless of negligence or intent. To qualify, the worker only needs to be injured in the course of his or her employment duties.
Death on the High Seas Act
This federal Act provides compensation to surviving dependent family members of workers who die at sea under certain conditions. A qualifying dependent may file a claim for compensation. A successful claim must prove that (1) negligence, inappropriate judgment, or a wrongful act on the part of the shipowner contributed to the death of the seaman; and (2) the vessel was unseaworthy. If the decedent negligently contributed to his death, then compensation can be reduced accordingly.
Maryland Maritime Attorneys at Gilman & Bedigian
The attorneys at the Maryland law office of Gilman & Bedigian represent maritime workers who have been injured during the course of their work. You deserve the most compensation maritime law can provide, and we know how to identify the right law and right course of action that results in the fairest and just remedy for you. Contact us online or call our law office at (800) 529-6162.