Accidents that lead to injuries happen at sea, offshore, or on ports daily. Workers and non-workers alike can be the victims of these accidents. In most cases, victims of personal injuries qualify for compensation, but the source of compensation, the respective amount of compensation, and how it is obtained varies according to the victims' designation as a worker or a passenger and the location of the accident. If you have been injured in a maritime accident, whether on a port, offshore, or at sea, you may qualify for compensation, and what you do after you sustain an injury will matter greatly to the successful attainment of that compensation.
Duty of Care to Workers & to Passengers
Imagine you are a passenger out at sea on a cruise ship, and some type of equipment on the cruise liner malfunctioned for various reasons, and a fire ensued. Several passengers and workers were injured. If something of this nature happens, the workers and the passengers file for compensation in slightly different manners and under different laws. Some may wonder why since the sustained injuries emanated from the same incident. But like on land, employers have a special relationship with their employees, and this relationship varies from the relationship employers may have with clients or customers of the business. The same applies at sea: an employer's duty or relationship to employees varies from the duty or relationship an employer owes to its clients, customers, and/or guests.
Duty of Care to Workers
Employers, ship owners and ship operators owe a duty of care according to the industry's standard to its employees, crew members, or workers. This duty of care requires that they provide a safe working condition, which includes inspections and maintenances of all equipment, ships and platforms. It also means that the employer must employ persons who are adequately trained and must employ enough persons to safely carry out the necessary tasks and duties.
To note, maritime employers cannot and are not expected to protect employees at all times from all dangers that working in the industry entails.
If an injury happens, then the crew members and workers have available remedies through maritime law. These remedies are available even if the employer was not negligent. The circumstances, the designation of the worker and the location of the incident will determine under which law a claim is filed. Maritime law was was founded on the want to protect workers who are employed in one of the hardest occupations in the world, so it has developed over the years ways to ensure the same, both for the worker and the worker's immediate family.
Duty of Care to Passengers
A cruise ship owner or operator “is not an issuer of its passengers' safety… There thus must be some failure to exercise due care before liability may be imposed.” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630 (1959). Ship owners and operators generally do not owe a special duty of care to passengers of the ship, but they owe a reasonable duty of care in relation to the circumstances. That said, owners or operators of ships must always ensure that the ship, its equipment and its crew are seaworthy, and therefore, the ship and the equipment on board the ship must be in reasonable working condition so that they perform tasks they were intended to perform, and the crew must be adequately able to manage the ship.
That said, passengers are owed a special duty of care according to the Shipping Act of 1984, 46 U.S.C. §1702(6) to be provided reasonable security. Accordingly, passengers should be protected from physical harm and should be delivered to their destination safely. This special duty of care applies to the protection of passengers from assaults, rapes, and other criminal attacks that could potentially be made against them by crew members, or other workers. Statistically, these crimes are relatively high on cruise ships, and in 2010, Congress enacted the Cruise Vessel Safety and Security Act to address the problem, though more needs to be done.
There is one more very important piece to the duty of care owed by the ship owner or operator and the passenger, and that is: the ticket you purchased, which is essentially a contract between you and the cruise line. In this ticket contract, the terms usually always favor the cruise line. The terms of the contract are lengthy, loaded with legal jargon, and legally binding, thus, the terms may have an impact on a passenger's right to sue. Terms of the contract made available through a ticket also affect jurisdiction, compensation and time limitations to file a claim for compensation. Therefore, though a cruise line or other water vessel owner owes you a duty of care as a passenger, that duty of care can be limited to the benefit of the owner or operator of the water vessel, and not you: the passenger.
Steps to Take If You are a Maritime Worker and Are Injured During the Job
Injuries in the maritime industry are common and happen often, some minor and some life-threatening if not fatal. As in most personal injury matters, there are certain basic steps you should take to ensure you qualify for maximum compensation.
- Seek medical assistance. As in any accident, the first step you should take is to have proper and immediate medical attention regardless how little you think the injury is. Seeking medical assistance establishes a record with the medical staff or healthcare provider, and this record becomes part of your evidence should you file a claim for personal injury.
Document everything. After you have received medical assistance, and if you are able (or if a family member is able), you should document what happened along with any questions or concerns you may have. Even if what happened doesn't make complete sense because everything is still a little "foggy," you should document all your memories. Sometimes, as you heal, your memory also heals, and new details become clear. Document these memories as they transpire. Things to note as you document your memories:
- Who was there when you were injured?
- What equipment were you or anyone else using?
- Instructions you were given by a boss or co-worker just before the accident?
- Gather evidence. There are certain documents or evidence you will need to gather, which can be grouped into two purposes: (1) the circumstances of the incident or accident; and (2) the consequences of that accident on your current finances and health and future finances and health. You will need things like the ship's logs, incident reports, third-party interviews or statements, medical records, medical prognosis.
- Don't speak to anyone associated with the at-fault party. Regardless if fault is necessary to prove in order for you to obtain compensation, you should not speak to either your employer, its insurance company, or its attorney unless on a very basic level. To do so has harmed many cases. Your employer, or its attorney and insurance carrier hold their interests as their priority and your compensation as a risk to their interests. Whatever you say to them, they will use against you in any way possible to either devalue or possibly deny your claim. Only your legal representative should speak to these parties.
- Seek an experienced maritime personal injury counsel. This step is key to attainment of just and fair compensation, and though it is listed last, it is likely the most important. Maritime law is very complex, and to do it alone or with an inexperienced lawyer risks mistakes being made and deadlines being missed. If either of the latter happens, you may have to forfeit compensation, or at least maximum compensation owed to you.
Steps to Take If You are a Passenger on a Ship or Water Vessel
Maritime law was established to protect the maritime industry, both employers and employees of the industry, and not passengers. Maritime laws are not consumer-centered, thus, they are not the best means to compensation. Second, as already mentioned, passengers ability to recover compensation is hugely dependent on the terms of the contract to which they bind themselves once they purchase tickets. Third, ships, if a cruise liner, can house thousands of people, and most will be guests or passengers who come into contact with hundreds of workers, including cleaning staff, cooks, entertainers, etc. Keeping in mind the duty owed to passengers, if you are a victim of an accident or a criminal activity and sustain an injury, you should follow several steps.
- Seek medical assistance. If you were injured, immediately visit the ship's doctor for treatment. If necessary, you may also want to see a doctor at the next port of call. There have been many instances where a cruise ship's doctor is inexperienced or commits medical malpractice. It is sometimes difficult to retain competent, experienced doctors on cruise ships, so be mindful if you start to have any negative effects after visiting the ship-based doctor. Either way, visiting the boat- and/or land-based doctor established a record that may be used as evidence if a claim or lawsuit is filed.
- Report the incident or accident. At your first availability, report in writing the accident or incident to the ship's security. You may have a guest injury statement to completed. Be very careful what you say or write. After you report the incident and questions are asked for investigative reasons, be aware that these questions may be in accordance with IMO standard procedures as much as they are in anticipation of litigation. Likewise, you should also be aware that a cruise line will conduct the investigation in a manner that best reflects them rather than a focus of your best interests and safety. Don't believe they are trying to help you by engaging you and acquiring statements from you. They can and will use this knowledge against you if it furthers their interests or protects them against liability.
- Document everything. Be your own investigator. Document when and to whom you reported the crime, and who was with you when you did so. Writer you own summary or time table of what happened. Keep a running list of names, especially names of the doctor, investigator, at-fault party, witnesses, among others, whoever is involved in some capacity.
Gather information. Obtain a copy of your written report and any other statements made by workers or other passengers. Take photographs, if possible and if applicable. Write down the name, address, and telephone number of each person who was a witness to the incident.
- You will need the forms you signed prior to taking the trip.
- Make sure the accident was reported and documented with the IMO, and then obtain the report(s).
- Obtain all medical records.
- Obtain any and all statement made by any employees or eyewitnesses.
- Contact an experienced personal injury lawyer. Contact an experienced lawyer to discuss the incident as soon as possible. The deadline to file a claim is usually laid out in the terms of your ticket. It could be as little as 6 months to file a notice of claim and a year to actually file the claim. In injury cases, this is a very serious limitation, and if you miss a deadline you then miss your opportunity for just and fair compensation. An experienced lawyer will know what to look for, how to address it, and will, among other tasks, file documents in accordance with the deadlines.
Resourceful, Compassionate Representation in Maryland
At Gilman & Bedigian, we have the knowledge, skill, and resources to pursue your case and work to obtain the maximum possible compensation. We understand how vessels work, how injuries like yours can happen, and how to address your specific case with all stakeholders. We negotiate but accept only an offer that benefits you, and in absence of the latter, we litigate.
When you let us handle the details of the legal process, you free up personal space to address more time to your physical recovery and on rebuilding your life. Contact us today for a free consultation.