Q. What law applies to vessel injuries?
A. Any injuries on what is known as “navigable waters” of the United States are governed by a federal law known as admiralty or maritime law. This is an ancient body of law which goes back many centuries and which was adopted by the United States when it became a nation. Federal courts have established that federal maritime law applies to any injuries occurring over what is known as navigable waters of the United States. This is a water system which includes all of the oceans adjacent to our country, all of the rivers and canals which are capable of supporting boats and vessels involved in commerce, and all lakes and other water bodies connected with this river and canal system. Bodies of water such as ponds or totally enclosed lakes are not considered to be part of the navigable waters of the United States. State law would apply to any accidents which occur on those water bodies. However, the bulk of waters in Louisiana are navigable waters and are governed by federal law.
The general principle concerning injuries on navigable waters is that those parties at fault bear the responsibility for their actions. A system of comparative negligence is applied to analyzing any accident, whether it involves a personal injury or merely property damage. In other words, federal courts require that each party’s fault or involvement in the accident be analyzed, and that each party bear its percentage of responsibility to pay the damages arising from the accident. This is a similar principle to that governing accidents occurring on land in Louisiana.
With regard to the operation of vessels, including non-traditional vessels such as floating rigs and dredges, specialized regulations are promulgated by the United States Coast Guard and other federal agencies. There are also specialized rules of navigation contained in federal law which govern the operation of vessels in rivers and in the open ocean.
Q. What is the Jones Act?
A. The Jones Act is a federal law (46 U.S.C. 688) which provides special remedy to those individuals who are considered crew members of either traditional vessels, such as tugs or fishing boats, or non-traditional vessels, such as floating rigs or dredges. It allows those workers to file a liability action against their employer and seek recovery of all of their damages caused by the accident. Under the Jones Act, a
worker has some very favorable legal choices if he chooses to assert a claim. First, he has a lighter burden of medical causation to prove in a Jones Act case. If a worker can show that an employer’s negligence or failure to furnish him a safe place to work causes injury, even in part, he is entitled to recover for the full extent of the injury. Additionally, in a Jones Act case, the attorney representing an injured crew member has the option of filing the claim in either federal or state court. If it is filed in federal court, the attorney has the option of selecting either a judge or a jury to resolve the case. These are very favorable strategic options which are available to an attorney and a claimant in a Jones Act case.
Q. How does the Jones Act differ from workers’ compensation?
A. In most land-based injuries, if a worker is injured due to the fault of his employer or one of his co-workers, he can only sue his employer through workers’ compensation. As explained in the workers’ compensation section of the practice areas, the two workers’ compensation statutes – the Louisiana State Workers’ Compensation Act and the United States Longshore and Harbor Workers’ Compensation Act – both provide limited specified weekly payments and medical expenses. These statutory compensation laws go into effect regardless of fault. In other words, even if the employee himself is 100% at fault, the workers’ compensation statutes apply. Under the Jones Act, however, an employee can assert a claim against the employer arising from the employer’s negligence or that of a co-worker, and can claim all of his damages. In other words, instead of getting limited weekly compensation benefits, an employee can seek recovery of all the lost wages he has suffered, both in the past and in the future. He can also assert a claim for the physical and mental pain and suffering he sustained, the disability he suffers, and the loss of enjoyment of life caused by the accident. This is a much more complete remedy for an injured employee, as opposed to either state or federal workers’ compensation.
Q. What is maintenance and cure?
A. In addition to a recovery under the Jones Act, an injured crew member has a right to claim what is known as maintenance and cure. This remedy arose several centuries ago in the old maritime law when sail-powered vessels were still sailing around to various parts of the world. At that time, a body of law developed obligating the vessel owner to pay for an employee’s room and board when he was put off at a foreign port for medical treatment. It also obligated them to pay medical treatment until the employee reached what is known as “maximum cure.” This means that the employee has gotten as good as he can get through the medical treatment afforded.
This ancient remedy has been transformed into the modern remedy of maintenance and cure. This body of law still obligates employers to make rather limited payments to employees to pay them for the expenses of living while they are undergoing medical treatment for an injury. This remedy is automatic, and the employer is obligated to pay it regardless of fault. If an injury of any type or even a sickness arose during the course of an employee’s service to a ship, then the employer must pay maintenance and cure. Generally, however, the maintenance payments are very, very low – usually in the area of $25 to $30 per day. Obviously, no one can live on these payments in modern times and, generally, the payment of this meager maintenance causes many to seek legal representation early in the claim process. Additionally, the employer must pay the employee’s medical expenses, also known as “cure.” An employee is entitled to select a doctor of his own choosing and the expenses must be paid until the employee reaches “maximum cure.”
Q. What is unseaworthiness?
A. An additional avenue of recovery available to crew members working on a boat is the federal maritime remedy of asserting recovery under a theory of “unseaworthiness.” When a vessel manifests a defective condition, such as a broken machine, a leaking hose, or even a poorly trained crew, this can all lead to an injury. If a crew member’s injuries are caused by a defective condition on the vessel, the shipowner/employer is liable to pay for all the damages caused by such defect. Generally, an attorney representing an employee under such circumstances will combine a Jones Act remedy with an unseaworthiness remedy. Sometimes, an employer may not have committed the requisite negligent act, but it may still be liable under the theory of unseaworthiness. If a defective condition exists, and it causes an injury, an employer/shipowner will be liable, regardless if the employer knew about the condition or not. Once again, this is a very favorable remedy which can be employed to help injured crew members.
Q. How much time do I have to file a claim for a vessel injury?
A. If you are injured on navigable waters, there is a three-year time limit, also known as the statute of limitations, imposed by federal law. Certainly, with individuals moving and businesses changing at a rapid rate, a claim should be asserted well before the elapsed three years. In a serious case, immediate consultation with an experienced maritime lawyer is advisable, and a claim should be filed promptly after such consultation.
Q. What type of damages or compensation can be claimed under maritime law?
A. Workers injured on navigable waters have a right to claim recovery for all past and future lost wages; past and future medical expenses; past and future physical and mental pain and suffering; an award for disability; and loss of enjoyment of life, directly caused by the accident.
Q. Are the spouses or children of injured workers allowed to claim damages under maritime law?
A. In the case of a wrongful death, a spouse or dependent children may make claims under maritime law. The nature of the claim will be greatly affected by the circumstances of the death. In maritime cases occurring beyond three miles from the Louisiana coastline, a federal law known as the “Death in the High Seas Act” will probably apply. In such cases, the damages recovered by the spouse and dependents will be limited to primarily economic damages and the loss of guidance suffered by the surviving children. In the case of injuries on navigable waters within the three-mile limit, claims for both economic and non-economic (loss of love and affection, loss of society) will be allowed as elements of damage.
Sadly, the federal courts many years ago eliminated an action of a spouse whose wife or husband was severely injured in a non-fatal accident. While recovery for what is know as a loss of consortium claim is allowed by a Louisiana law applying to land accidents, such a claim is not allowed by federal maritime law.
Q. If I am partly at fault in a maritime accident, may I still make a claim for recovery?
A. The federal law applies what is known as a comparative negligence analysis to determine the fault of all parties involved in an accident. Even if an injured crew member or maritime worker is partially at fault, he may still assert a claim for his damages. If, for example, that crew member is found to be 50% at fault, his eventual award by a court would be 50% of his damages. Accordingly, any serious case involving complicated facts should be thoroughly investigated by the attorney undertaking to prosecute the claim.
Q. Are there situations where maritime law would still apply to individuals who worked on fixed platforms or who are not crew members of a vessel?
A. Federal maritime law applies to all injuries of any type that occur on navigable waters. In other words, if you are injured while a passenger on a crew boat, or if you are injured through the fault of a supply boat or some other similar activity, you would still have the right to pursue a claim under maritime law against the responsible party. The fact that you are not a crew member of a particular vessel would not prevent you from filing a claim in maritime law against the parties who caused the injury on navigable waters. The key is the fact that you were injured on navigable waters and have the right to pursue a claim against the party who is responsible for your injuries.