How To Protect Your Rights Under the Jones Act and Maritime Law

by Matthew D. Shaffer and Dennis M. McElwee

I. INTRODUCTION

The paper has been designed to assist maritime workers injured in the course of their work in protecting their rights under the Jones Act.

II. WHAT IS THE JONES ACT?

The Jones Act is an act of Congress, which governs the liability of vessel operators and marine employers for the work-related injury or death of an employee. It is a federal cause of action, meaning that the United States Congress intended for all seamen's injuries throughout the nation to be guided by the same liability standards. Although the Jones Act protects seamen, it is not workers' compensation. It does not require payment regardless of fault. In order for a worker to recover under the Jones Act, a worker 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. This means that the employer must do something unreasonable or fail to perform a reasonable act that would have prevented injury in order for the seaman to win his claim.

A. MAINTENANCE AND CURE

If a seaman becomes ill or injured on a vessel, regardless of the fault of the vessel or its operators, his remedy is called maintenance and cure. "Maintenance" is a small daily stipend designed to provide the food and shelter that would have been provided to the seaman while aboard the vessel. Today, maintenance rates range from $8 to $45 per day. "Cure" is the obligation of the seaman's employer to provide medical treatment, prescription drugs, nursing services, etc., until the seaman reaches maximum medical improvement. Maximum medical improvement means that the seaman's condition will not improve any further or he is permanently disabled. When a seaman reaches maximum medical improvement, the vessel owner's obligation to pay maintenance and cure ceases, regardless of whether the seaman can return to work. The seaman has a right to his choice of physicians and does not have to accept treatment by his employer's choice of physician. If an employer refuses to pay maintenance and cure, he can be held liable for damages and attorneys' fees. It is important to remember that an injured seaman gets his maintenance and cure, regardless of whose fault caused the injury.

B. UNSEAWORTHINESS

In addition to holding a seaman's employer responsible for the negligent acts of its employees and officers, a seaman can recover if he can prove that the vessel was unseaworthy and that he was injured as a result. A vessel that is unseaworthy does not mean that it is in danger of sinking. A vessel is unseaworthy if a piece of equipment breaks or is inoperable, the vessel's crew is too small or incomplete, or a condition such as oil, grease or rust exists where it is not intended to exist and the unseaworthy condition is a direct cause of injury to the seaman. In other words, negligence focuses on acts of the employer where as unseaworthiness focuses on the condition of the vessel.

When it comes to proving the case, the United States Congress and federal courts have granted the seaman many benefits that are not available to any other occupation.

III. WHO IS A SEAMAN?

A very large part of any maritime injury case is whether the injured party is a seaman. 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. Those who are crewmembers on movable or jack-up drilling rigs are seamen. Officers and crew are all considered seamen. Longshoremen, pilots, and those who work on fixed platforms are not seamen, but have other maritime remedies available for injuries. Often there is a dispute as to seamen status and whether the seaman was working on a vessel when he was injured. You need an experienced maritime lawyer to help you get the maximum recovery for your case.

IV. WHAT CAN A SUCCESSFUL WORKER WIN UNDER THE JONES ACT?

Generally speaking, a successful plaintiff under the Jones Act can win the following sorts of damages:

1. Wages lost from the time of the injury to the time of trial;
2. Wage loss in the future;
3. Medical expenses in the past and in the future; and
4. Pain, suffering, and mental anguish in the past and in the future.

Without a doubt, the most important element of any Jones Act case is the measure of future wage loss. Obviously, seamen who have been on the job for a long period of time can earn a very good living. If an injury physically prohibits the worker from returning to work on a vessel, the difference between the earnings of the worker before the injury and after the injury are determined and then multiplied by the worker's expected work life. For example, if a seaman that was making $80,000 a year is injured and can only return to work to a job making $10,000 a year, the worker has a $70,000 a year wage loss. If the worker is twenty-five years old, his work life may be 35 years, and the future wage loss is a very significant amount. Federal law provides that any award for future wages must be reduced to present value and reduced further for the taxes the seaman would have to pay on his wages. That means an economist must calculate what sum of money paid today would deliver a stream of payments into the future equal to the amount the worker could have earned if he stayed on the job.

The law also provides a remedy if an injury causes the death of a seaman. Under the Jones Act, the surviving widow or husband and children of the employee are the beneficiaries. If the worker does not have a spouse or children, then the beneficiaries include the employee's parents. A personal representative such as an executor is entitled to bring an action that the worker would have possessed had he remained alive against his employer. In other words, the worker's cause of action against the employer does not die with the worker. In a death, damages go to the survivors and are measured by the "pecuniary loss" of the beneficiaries. Pecuniary loss means the loss of financial support as well as a loss of services by the spouse and loss of care, counsel, training and education to the minor children. What is not recoverable, however, is non-pecuniary damages such as grief, wounded feelings, loss of society or companionship. Thus, this is one area where the Jones Act cause of action is not as generous as other causes of action. (If a seaman contracts a rare cancer or disease, an attorney should be consulted to determine if there is a link between the disease and the many chemicals and other hazardous substances seamen are exposed to on a regular basis.)

V. WHERE ARE THE CASES FILED?

Under the Jones Act, a case can be filed in either federal or state court. A worker must depend on his attorney to file the case in the proper court. In federal court, the cases can be tried to a judge or jury, at the seaman's election.

VI. HOW LONG DO I HAVE TO FILE A LAWSUIT?

The Statute of Limitations in a Jones Act case is generally three years from the date of the injury. There are exceptions to this general rule, however such as seaman assigned to vessel owned, operated, or contracted by the United States government. Therefore, it is extremely important to consult with an experienced maritime attorney as soon as possible.

VII. EMPLOYER DEFENSES

The primary employer defense to a Jones Act action is that of contributory negligence on the part of the seaman. Contributory negligence means the fault or negligence of the seaman that brought about the injury. At the conclusion of every case, the jury (or the judge) will answer a series of questions as to which parties (the plaintiff, the employer, or others) were negligent and then the jury is asked to place a percentage of negligence as to each negligent party that caused the accident. For example, the jury may find that the employer was 60% at fault and the seaman 40%, or that the seaman was 99% at fault and the employer was 1% at fault or any combination in between. The jury can also find that the employer was 100% at fault or the seaman was 100% at fault. The practical fact is that for every percent of negligence placed upon the plaintiff, the plaintiff's award will be reduced accordingly. For example, if the jury finds the employer is 60% responsible and the seaman 40% responsible, and awards $100,000, the court must deduct 40% or $40,000 from the award, and the seaman would receive $60,000. Factors to be considered in determining whether a seaman is negligent includes whether he was following orders, whether he was using equipment provided by the vessel, and the fact that a seaman has very little control over his work environment, and must follow the orders of his superiors.

VIII. HOW MUCH IS MY CASE WORTH?

One of the most frequently asked questions that we are presented with as maritime lawyers is: How much is my case worth? Also we are presented with the following: Joe Blow got $400,000.00 for his case, how come I'm only getting $300,000.00? It is important to remember that every case is different and it is very hard to value one worker's case by looking at the results of another. At best, an experienced lawyer can only give an estimated guess as to the value of a case when it is first presented to him by the client. Ultimately, if the case does not settle, its value will be determined by six or twelve complete strangers who sit as the jury. An experienced lawyer, however, may look at several factors and give an opinion as to the value of the case. Experienced maritime attorneys will look to the following factors:

The fault of the negligence of the employer in bringing about the injury;
The fault or contributory negligence of the seaman in bringing about the injury;
The nature of the injury;
The amount of time the worker is disabled;
The age of the worker;
The education of the worker;
The previous job or career of the worker;
The prior injury history of the worker;
The employment record of the worker; and
Whether there are any factors that may bear on the worker's credibility, such as convictions or felony crimes.
All of the above referenced factors must be considered and weighed in determining the value of a Jones Act case. The modern trend in litigation of Jones Act matters is for the courts to order mediation before trial. Mediation is a process where an independent party, known as a mediator, attempts to assist the settlement of the case. Normally, all the parties appear at the mediator's office and both the plaintiff's attorney and defendant's attorney present the high points of their respective case to the mediator. The plaintiff's attorney will make a demand and the mediator will start the negotiation process and act as a go-between to facilitate the settlement. Mediation is a very positive process and normally results in the settlement of the case. It is very successful because all of the parties necessary for settlement are present and both the favorable and unfavorable aspects of the case are evaluated by both sides with the assistance of the mediator. The vast majority of Jones Act, as well as other cases, settle prior to trial. The primary reason for settlement of the case prior to trial is that the outcome of the case is put into the parties' hands as opposed to six or twelve strangers sitting on the jury. Although an experienced maritime attorney can estimate the value of the case, no one has a crystal ball and juries can produce inequitable results.

IX. WHAT SHOULD I DO IF I AM HURT AT WORK?

There are several steps a seaman and his family can take to preserve and protect the valuable rights given to a seaman.

The most important step a seaman can take is to identify the producing cause of his injury as soon after the injury as possible. The employer requires every injured party to fill out an incident or accident report soon after the accident and this is the first opportunity the seaman has to identify the fault of the employer or vessel as to the producing cause of the injury. If something breaks or is not in good order, is slippery or greasy or broken, note it in the accident report. If you think that any order that was given to you was improper or negligent or any piece of equipment that you were given to work with was faulty or not in good order, put it in writing. Judges and juries tend to believe statements given by workers at or near the time of the incident before a lawyer gets involved much more than versions of an incident that come to light several months later. We cannot stress how important it is that if there is any faults on the employer to note it on the accident report;
Contact an experienced maritime lawyer as soon as possible after the accident. An experienced lawyer that is familiar with maritime cases will help draw out and point out those areas which may be considered employer liability. Write down the names, addresses, and telephone numbers of all witnesses, so your lawyer can investigate your claim quickly;
Make a selection of a competent physician of your own choice for treatment. This is also a very crucial and important item. If at all possible, do not let the employer recommend or select a physician for your treatment. Ask an attorney or your co-workers who have been injured what physicians in the area where you live give the benefit of the doubt to the worker as opposed to the employer. In our practice we see some physicians who are either pro-plaintiff or pro-employer. You want to select a physician who understands the work requirements of a seaman and will not send the worker back to the job until he can do the work without hurting himself or his shipmates. A good doctor will perform all necessary tests to determine the extent of the injury before returning to work. On the other hand, an employer's physician often gives the employer the benefit of the doubt and most often will state that the seaman is not injured and can go back to work because he gets many of his patients from employers;
Select an attorney that is familiar with the Jones Act and Maritime Law. Ask any attorney that you talk to how many maritime cases they have handled and how many they have tried. Ask the attorney where he plans to bring the lawsuit and, what are the usual results in that particular court. Inquire as to whether or not the attorneys work with certain physicians or group of physicians. Ask if the attorney has the financial resources to take on a maritime case, which can become very costly.

X. WHAT CAN I EXPECT FROM MY EMPLOYER?

One of the most important things to remember for any injured employee is that the shipping company is a business. The primary goal of a business is to make money. An injured worker represents a loss. Claims representatives, although they may appear friendly, have one goal in mind, to save the employer money. In order to save the employer money, it is incumbent upon claims agents and representatives to minimize your injury or place the blame for the injury upon the worker. Often times, a statement will be taken soon after the accident while the worker is still under the shock or under heavy medication. Claims agents are experienced and trained to bring out the weak points and to turn around a set of facts against the seaman. A worker that has consulted with an attorney before giving a statement will be made aware of these tricks and the ways to avoid being shut out by the company. One thing that the employer is prohibited from doing is using any form of intimidation to prevent a worker from: (1) pursuing his rights under the Jones Act; or (2) collecting information about the accident from witnesses.

XI. CONCLUSION

Often times, events that take seconds to transpire can affect a seaman's career, family and livelihood forever. The decision to pursue claims against his employer is an important one and should not be taken lightly. The rights of the seaman have been hard fought and should be guarded zealously.