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In recent years, seafarers and maritime workers have seen several named storms, with Hurricanes Matthew and Otto in 2016, and Hurricanes Harvey, Irma, Jose, and Maria in 2017. Aside from these devastating storms, there have been numerous tropical storms as well.
Employers have specific obligations to employees during natural disasters that they must follow. If they fail to enact the proper protections to provide a safe working environment, they could be held accountable in the event employees are injured. Employees can even initiate claims using various maritime acts with assistance from maritime lawyers.
In addition, seafarers and maritime workers are entitled to certain protections under the Jones Act and other maritime acts in the event of tropical storms and hurricanes should they sustain injuries.
Essentially, maritime employers have a duty to protect their employees, contractors, and other seafarers in their employ during tropical storms and hurricanes. Unlike onshore work areas, offshore and sea work environments pose their own unique set of challenges. Onshore, workers are easy to evacuate further inland away from ports until the storm passes. With offshore workers, it requires a bit more planning and determining the safest methods to utilize.
Part of the duty of care employers have is to develop an emergency evacuation plan. Since tropical storms and hurricanes are not fast moving, there is sufficient time to make necessary preparations.
The plan should outline what steps and procedures should be taken to secure equipment, vessels, and other such items. Additionally, the plan needs to include a prescribed evacuation route and how employees will be evacuated.
For instance, on offshore rigs, employees would need to be evacuated prior to the storm either by helicopter or a vessel. After being evacuated, then employees need to be moved to a safe location out of the storm’s path, either offshore or onshore.
Furthermore, the emergency evacuation plan should detail what processes and procedures will be followed after the storm passes, such as evaluating damages, making repairs, and so on. Employers should ensure all employees are familiar with the plan by conducting regular practice drills.
Generally speaking, there are no mandatory laws that require owners of vessels to evacuate them while in port prior to a tropical storm or hurricane. However, local, state, or federal governments may enact special requirements in advance of a storm making landfall.
In cases where vessels can be safely evacuated from harbors or ports prior to the storm reaching land, then an employer may elect to do so. They must verify that taking the vessel out to sea poses no risks to employees from the storm. Employees must be able to navigate the vessel away from the storm and have sufficient time to do so.
In the event the storm is too close to land to safely evacuate vessels from a harbor or port, then employers cannot require employees to do so. Rather, employers can require employees to secure the vessel as best as possible against potential damage caused by the storm. After doing so, then the employees should be evacuated further inland away from the shore.
These types of natural disasters are accompanied by heavy rain showers, high and damaging winds, as well as storm surges. They can also spawn offshore and onshore tornadoes and severe thunderstorms.
The types of injuries seafarers could face might include:
There can be a wide range of damage caused by both tropical storms and hurricanes. Some of the more common events that can occur include:
In cases where a vessel is docked in a port, storm surges, combined with the powerful winds from the storm, could easily break the vessel loose from its moorings and push it inland.
In the aftermath of Hurricanes Harvey, Irma, and Maria, the federal government waived specific requirements detailed in the Jones Act. The waiver of the act by no means eliminated the protections afforded to employees injured while in the service of a vessel and their right to file Jones Act claims.
Rather, the waivers were initiated to allow foreign ships to move goods, equipment, fuel, and other such cargo between U.S. ports. Under the Jones Act, U.S.-owned and operated vessels are the only ones that can transport cargo between U.S. ports.
After Hurricane Harvey and Irma, according to information obtained by PBS’ NewsHour from the Department of Homeland Security, a total of eight vessels made use of the waiver to move goods between U.S. ports.1 In Puerto Rico, no vessels made use of the waiver, since U.S. vessels were fully capable of supplying needed relief to the island.
Even though the federal government waived the Jones Act for a short period of time, the problem in Puerto Rico was not getting the much-needed supplies and equipment for recovery. Numerous U.S. ships had already arrived to unload these things to bring relief. The problem was getting the supplies from the ports inland, as numerous roads were washed out and others were impassable.
To illustrate the importance of the duty of care employers have for seafarers and maritime employees, let’s look at two different maritime law cases examples. Both of these cases have helped establish that employers need to ensure employees are protected when tropical storms and hurricanes threaten their work environments offshore.
In 1995, during Hurricane Roxanne, a diving contractor failed to evacuate a diving crew from a barge in advance of the storm in the Bay of Campeche. The diving crew supervisor even requested that the employer evacuate the crew, but the employer refused to do so. As the hurricane approached, the barge started to sink.
The crew was eventually forced to abandon the sinking barge and ride out the storm in 30- to 35-foot seas. The employer was found to have been negligent of evacuating the crew. The employee was awarded a total of $966,272 in damages.2
In another case in 1997, an offshore drilling rig employer decided to evacuate non-essential personnel in advance of Hurricane Danny. The employer contacted a charter vessel to take the employees onshore where they would be safe.
After boarding the vessel, the ship’s captain failed to monitor weather reports that announced Hurricane Danny had shifted its course. Ultimately, the ship sailed right into the path of the hurricane, which resulted in a dangerous voyage that lasted fifteen hours on a trip that should have only taken six hours.
The court found the two employees who were injured were entitled compensation for their damages against the charter vessel because their safety was entrusted to the captain of that vessel. The court awarded $765,217 to one employee because his injuries also included psychological injuries and $81,068 to the other employee for her injuries.3
As evidenced by these two examples, when employees are injured during tropical storms and hurricanes, employees or their agents are responsible to ensure their safety.
The Jones Act and worker’s compensation have some similarities. They both provide benefits to injured employees and provide assistance until they recover and can return to work. One primary difference is the Jones Act is for maritime workers, while worker’s compensation is for land-based employees.
However, seafarers that work as longshoremen, dockworkers, or other areas within ports may be afforded other protections besides worker’s compensation through other Maritime Acts, like the Longshore and Harbor Worker’s Compensation Act (LHWCA).
Another key difference between the Jones Act and worker’s compensation is being able to prove the employer was negligent in some manner for the resulting injuries. With worker’s compensation, fault does not matter, and an employee can claim benefits—although, if they initiate a lawsuit against the employer, then proving negligence can become necessary.
With the Jones Act, the employee must demonstrate the employer or co-workers were negligent in some manner. Yet, they do not have to show they were completely at fault but only establish they were partially at fault.
In regards to compensation, the Jones Act allows employees to seek damages for medical care and treatment, medical bills, and lost wages if they are unable to return to work. With worker’s compensation, employees can only seek disability benefits, not the lost wages they would have earned.
In the event a loved one or you are injured while in the service of a vessel during a tropical storm, hurricane, or another natural disaster, you may be entitled to certain compensation for your injuries. It is worth your time to consult with an experienced Jones Act lawyer at Schechter, Shaffer & Harris, L.L.P. by calling 713-893-0971 for a free consultation today!