1. Jones Act – Statutory Provisions The Jones Act provides that any “seaman” (member of a crew) who suffers a personal injury caused in whole or in part through the negligence of his employer or co-employees may maintain an action to recover all of his damages from his employer. The Jones Act is now found in 46 U.S.C. 30104 (formerly 46 U.S.C. 688). This statute is a notable exception in the field of workplace injuries, as will be set forth below in the section on workers’ compensation. The great majority of individuals injured in a workplace accident due to the negligence of their employer or co-employees are limited to prosecuting their claims in a workers’ compensation system. The Jones Act allows a seaman who is a member of the crew of a vessel to prosecute a civil action against his employer for all of his damages in the event he is injured due to the negligence of his employer or co-employees. Given the extremely hazardous conditions typically encountered on offshore drilling rigs or vessels operating in navigable waters, this remedy may offer such an injured party a chance at full compensation, rather than the limited protections afforded by the workers’ compensation statutes.
2. Vessel Status – In order to qualify as a seaman or a crew member under the Jones Act, one of the threshold questions becomes whether the structure on which the claimant is injured is considered a “vessel in navigation” under federal law. For an individual employed as a crew member on conventional craft, such as a tugboat, crewboat, or an oceangoing vessel, there is really no question that these individuals will be considered crew members under the Jones Act. In the context of oil and gas exploration in both inland waters and in the Gulf of Mexico, many structures have dual roles as traditional vessels and stationary work platforms. Under existing federal law, equipment such as jack-up work boats, jack-up drilling rigs, and semi-submersible drilling rigs will be considered vessels under federal law. On the other hand, facilities such as riverboat casinos, posted barge-mounted living quarters, and floating offshore production platforms which are attached to the sea floor for years at a time will generally not be considered vessels.
The United States Supreme Court held in Stewart v. Dutra Construction Company, 543 U.S. 481 (2005), that a vessel “is any watercraft practically capable of maritime transportation, regardless of its primary purpose or state of transit at a particular moment.” In that decision, the United States Supreme Court looked to a very broad definition under federal law of a vessel as any equipment that is practically capable of carrying men and equipment across navigable waters. This has been interpreted to mean that if an item of equipment can float and is practically capable of performing the task of carrying men and equipment, it will be considered a vessel. However, in the case where river boat casinos, living quarters, and floating production platforms are tied down for years at a time and have no practical capability of navigating, they are not afforded vessel status, and individuals working on those are covered by workers’ compensation laws, rather than the Jones Act.
3. Seaman Status - For individuals such as deckhands, chief engineers, able-bodied seamen, or boat captains working on the traditional type of vessel, the question of seaman status is clear. However, in the context of petroleum operations, any number of companies can furnish men and equipment to be deployed in various stages of petroleum exploration production. Questions are oftentimes raised by defendants in such cases as to whether those individuals are seamen covered under the Jones Act, or whether they should be covered under some type of workers’ compensation statute.
The United States Supreme Court in Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), set forth two critical elements that must be established for a seaman’s status: (1) The employee’s duties must contribute to the function of the vessel or to the accomplishment of its mission; and (2) a seaman must have a connection to a vessel in navigation (or to an identifiable group or fleet of such vessels), i.e., substantial in terms of both its duration and its nature.
The first element is meant to limit crew members to those individuals who are involved in doing the ship’s work. For a drilling rig, this could include not only the drill crew, but crews of other companies who are needed on the rig in order to perform the overall mission of the vessel to drill and explore for oil and gas. The first criteria is meant to exclude individuals who simply make a brief appearance or perform a specific task on a vessel and then leave to return to their land-based employment. This is meant to exclude workers such as ship repairmen or employees of service companies who work briefly on a vessel.
The second criteria generates most of the legal debate on seaman’s status. In many cases, the injured employee may have been moved from location to location by his offshore employer. Generally, if at least 30% of the employee’s time is spent on the vessel in which he was injured on an identifiable group of vessels controlled by his employer, he will be considered to have sufficient attachment and be considered a seaman. In conducting this analysis, the Court will not determine seaman’s status by taking a “snapshot,” but rather by looking over the employee’s entire employment with the alleged Jones Act employer.
4. Reciprocal Duties of an Employer and Employee under the Jones Act – The primary duty imposed upon all employers under the Jones Act is to furnish a seaman in his employment with a safe place to work. This of course is a relative term, but generally a Jones Act employer will be held liable for any defective conditions or acts of negligence on the part of management or other co-employees of the injured seaman. Likewise, every seaman has a duty to act reasonably to protect himself under the conditions of his employment. Just as is the case in Louisiana law, any Jones Act claim will also be governed by the law of comparative negligence. To the extent an injured seaman is found to be at fault, any recovery award against his employer will be reduced according to the percentage of his own negligence, as determined by the Court.
5. Unseaworthiness - In addition to a claim of negligence under the Jones Act, an injured seaman may also assert a claim against the vessel owner (usually his employer, but not always) for any injuries produced by defective conditions on the vessel. This is known as an action under the warranty of seaworthiness. General federal maritime law requires every vessel to be maintained by its owner in a “seaworthy” condition. This is interpreted in the case of a workplace to be a vessel free of defective and unreasonably unsafe conditions. If such a condition arises and causes injury, a vessel owner may be held strictly liable for the results of that condition, even if he had no specific knowledge or even opportunity to correct the condition. Typically, claims of unseaworthiness are combined with Jones Act claims and filed in one federal action.
6. Damages under the Jones Act - Since claims under the Jones Act (and for unseaworthiness) typically arise as workplace injuries, these claims greatly contrast with typical remedies afforded land-based employees under workers’ compensation statutes. In most workplace injuries, an injured employee may only assert a claim for workers’ compensation against his employer. In such claims, an employee will be limited to covering a set type of monetary compensation (usually two-thirds of his salary). Additionally, he will seek all medical expenses related to the claim.
Claims filed under the Jones Act afford an injured employee the opportunity to recover all of his damages, including an award for physical and mental pain and suffering, disability, and/or disfigurement. Additionally, he will be able to recover all of his past lost wages and any future loss of earning capacity. Finally, he will be able to recover all of his medical expenses and future medical costs.
Notably absent in the field of maritime law is a claim for loss of consortium, which can be filed with Louisiana law by the spouse, parents or children of an injured party. Claims for loss of consortium are not awardable under federal maritime law.
7. Maintenance and Cure - In addition to the legal action for negligence or unseaworthiness, an injured seaman also has the right of automatic recovery of a very limited type of payment from the employer known as “maintenance and cure.” Maintenance and cure is a very ancient legal remedy which began several hundred years ago to help pay the living expenses and medical expenses of seamen who were injured in foreign countries. At that time, the general maritime law decided that a shipowner should have to pay the cost of a hotel room and pay for a doctor in a foreign port for any seaman who had to seek medical attention during the course of the long, foreign voyage. This law developed into the 20th century and was interpreted by federal courts to mean that Jones Act employers had a legal obligation to pay a certain daily stipend known as “maintenance” and also had to pay an employee’s medical expenses up until the time an employee’s medical condition reached “maximum cure.”
Maintenance and cure in a modern context is an extremely limited and very reduced form of workers’ compensation. When a crew member is injured or contracts an illness, even if the fault is totally his own, an employer must pay maintenance and cure, regardless of the circumstances. The only test is that the injury or condition must have arisen while the employee was at work or “in the service of the ship.” Modern maintenance payments range as low as $15 per day to $50 per day. Additionally, an employer must pay for reasonable medical treatment required by the employee, but only has to pay this up until the time the employee reaches “maximum cure.”
The term maximum cure is interpreted to mean the time at which the injured’s condition is as good as it’s going to get under the circumstances. For example, an employee could sustain a very serious disabling knee injury and recover to his point of maximum recovery, but still be left with a disability. Under the rules of maintenance and cure, an employer can stop making the payment of medical treatment when the employee reached the point of maximum recovery, even though his disability continued.
Maintenance and cure is an extremely limited remedy and, if strictly observed by the employer, most employees will seek legal counsel. A more progressive or intelligent employer will decide to pay greatly increased payments to the employee in order to improve the employer’s bargaining position as a matter of fairness and equity. In such cases, some employers will pay part of all of an employee’s salary and will pay for medical expenses far in excess of what is strictly required in maintenance and cure. However, this is certainly not guaranteed, and any seriously injured seaman or crew member probably should at least seek legal counsel for an opinion on his legal rights following such an injury.
8. Wrongful Death Claims under the Jones Act – In cases of wrongful death happening in federal territorial waters (greater than three miles from shore), the claims of surviving loved ones are governed by the Death on the High Seas Act, 46 U.S.C. 761. This law, known as “DOHSA,” provides an action for relatives of the decedent to sue for the wrongful death of their loved one, but limits their damage to what is known as “pecuniary losses.” This means that only those damages which can be characterized as monetary or can be evaluated in a monetary sense can be asserted in DOHSA claims. This typically will allow a spouse to assert a loss of support claim. Additionally, claims for loss of nurture and parental guidance for children have held to be pecuniary in nature and can be asserted along with a loss of support claim. This is an extremely harsh remedy which was brought back into national consciousness by the tragic deaths of the workers on the Transocean Horizon on April 10, 2010. However, despite much publicity and efforts to change the DOHSA statute, the effort died in Congress and DOHSA remains controlling federal law in such tragic cases.
9. Claims arising under General Maritime Law – Waters in and around Louisiana can be divided into two types of waters – navigable waters and non-navigable waters. The term “navigable waters” has a particular meaning in law, especially federal law. The system of oceans, rivers and connected canals and lakes are considered to be part of one national system of “navigable waters.” From a legal standpoint, in order to be navigable, the water body in question must be connected in some way to the national system of oceans, rivers, and interconnected canals and lakes. For example, if a lake is totally closed and is not connected with this system, it is not considered to be part of the navigable water system of the United States, and Louisiana state law will govern events which occur on and under that body of water. If the water body is connected to the overall system of oceans, rivers, canals and lakes, and if the water is deep enough to support any type of commerce, it is considered to be part of the navigable waters of the United States. In this event, federal maritime law which has been formed by the courts of the United States for well over 200 years will govern the relationships of parties and will establish the substantive law which will govern any accidents or claims arising on navigable waters. Federal general maritime law will govern any type of accidents or claims arising from vessel collisions. It will also govern any type of claims by passengers for injuries sustained during a voyage on navigable waters.
Probably one of the most common claims governed by federal general maritime law arises in the case of a worker who works on or around navigable water, but does not have sufficient attachment to a particular vessel or fleet of vessels to be considered a Jones Act seaman. In the case of a worker who works over navigable waters and is injured through the fault of a vessel owner, federal law provides that an employee with a special cause of action is governed by general maritime law against the vessel owner for “vessel negligence.” This section is governed by a portion of a federal workers’ compensation law known as the “Longshore and Harbor Workers’ Compensation Act” [33 U.S.C. 905(b)].
This Act will be described briefly below in the section on workers’ compensation laws. This particular section of the Longshore Act grants an injured worker the right to sue the vessel owner for the vessel owner’s negligence which caused injury to the employee who was doing work on the vessel. The definition of “vessel negligence” does not include negligence of co-employees of the covered employee. A vessel owner will not be vicariously responsible for negligence of service companies working on the vessel, but only for negligence attributed directly to the vessel owner or its employees. These claims are typically filed in federal court. Such cases can also be filed in the state court system of Louisiana.
The decision of whether to file a general maritime claim in federal court or state court is one which is typically made by the attorney representing the injured party. There may be valid strategic considerations for filing in either location, depending upon the identity of the judge, the location of the court, and the facts of the case. Typically, such a decision is left to an experienced trial attorney who can evaluate the numerous factors and decide the best forum for the case.