Articles Posted in Maritime Law

The Jones Act (46 U.S.C. § 30104) is the primary law used by seamen to recover compensatory damages from their employers for injuries sustained in accidents occurring on navigable waters. To recover under the Jones Act, an injured seaman must prove that employer negligence caused the accident. This means that the Jones Act is not a no-fault system for recovering compensation.

Seaman injured on the high seas are entitled to maintenance and cure benefits without regard to fault. (Under general maritime law, a seaman has the right to receive compensation for food, lodging, and medical services resulting from illnesses or injuries suffered while working aboard a ship. Vaughan v. Atkinson, 369 U.S. 527, 531 (1962); see also Langmead v. Admiral Cruises, Inc., 610 So. 2d 565, 567 (Fla. 3d DCA 1992).) Hence, unlike the Jones Act, the maintenance-and-cure system is no-fault.

An employer’s failure of duty to provide prompt and adequate medical care to a sick or injured crewman is actionable under the Jones Act — See generally Olsen v. Am. S.S. Co., 176 F.3d 891, 895 (6th Cir. 1999) — while, under general maritime law, the seaman can bring a separate claim against the employer for maintenance and cure. Are the two types of claims the same? No.
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Seamen injured onboard vessels may be compensated based on two entirely different legal concepts: No-fault and Fault.

No-fault benefits include maintenance and cure. These benefits are provided by the employer and end when the injured seaman reaches maximum medical cure.

To receive these benefits, the employee need only show that the injuries occurred in the course and scope of the employment. It matters not what caused the injuries.

Fault-based compensation includes lost wages (past & future) and pain and suffering (past & future). This compensation comes from the employer and/or the vessel owner.
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Seamen injured on board vessels may be entitled to a wide array of economic and non-economic compensation from their employers and ship owners depending on the circumstances of each case.

NO-FAULT BENEFITS

Regardless of why a particular accident happens, every injured seaman is entitled to Maintenance & Cure benefits from his employer. These benefits are considered no-fault benefits, or benefits payable without regard to fault. Maintenance is the amount of money an injured seaman needs to sustain himself on land in a manner similar to how he was being sustained by the employer at sea. The primary elements of Maintenance are food and shelter. Employers try to pay pre-determined amounts, typically $20-$40/day, without regard to the actual facts. Employees can challenge the employer on the set amounts. For example, we recently represented an injured seaman who received $84/day. This was an unusually high amount that should not be viewed as anything other than an illustration of the point that the employer can be challenged and will sometimes voluntarily pay more than the industry standard. Interestingly, a seaman’s actual wages do not dictate how much the employer must pay, although it may influence how much the employer will pay. The reason for the higher payment is to offset the amount of money the employer may have to pay later on for past lost wages. (See below for a discussion of this element.)

Cure is medical care that is reasonable, related and necessary for the injuries.

The employer’s obligation to pay for Maintenance & Cure ends when the injured seaman reaches maximum medical cure. MMC is defined as the point beyond which there is no reasonable expectation of further medical improvement. Reaching MMC does not necessarily mean that the seaman has healed to his pre-accident state of health. MMC is determined by the treating doctor or doctors.

The third and final benefit available without regard to fault are the wages a seaman would otherwise have earned through the duration of the voyage but for the accident. In a recent case, we represented a gentleman who worked on a research vessel that was involved in projects at sea for months on end. Because he was injured during the early stages of a voyage and had to be evacuated from the vessel, as long as he remained unable to return to the vessel he was entitled to receive his full Wages.

It is not uncommon that the employer has to be sued to pay these benefits.

FAULT BASED COMPENSATION

Whether or not a seaman receives any other type of compensation for his injuries comes down to the question of whether or not there was any negligence on the part of the employer or vessel owner in causing the accident. If the answer is No, the seaman receives nothing more than the benefits described above.

Where fault is established, injured seamen may be eligible for one or more of the following types of compensation.

Past Wage Loss. The measurement of this damage element is the difference between the amount received in maintenance or contractual voyage payments and the wages the seaman would otherwise have earned but for the accident.

Future Lost Earning Capacity. This measure is somewhat trickier to calculate than the formula for past wage loss. It includes predictions and calculations regarding work restrictions, vocational qualifications, work-life expectancy, and present value. For example, in a case we handled involving a tri-level spinal fusion surgery, we argued that our 54 year old client would never again be able to work as a crewman, which would result in a total or at least a partial loss of wages over a work-life expectancy of 10 and 15 years.
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Passengers and seamen seeking to be compensated by vessel owners for personal injuries must show that the accident was caused by a condition onboard which makes the vessel unseaworthy. (Employees may also seek compensation against their employers under the Jones Act.) Unseaworthiness is a modified negligence-based system, rather than one of strict liability, meaning that injured parties have the burden of proving that an unseaworthy condition was the proximate cause of the injury. Edynak v. Atl. Shipping, Inc.., 562 F.2d 215, 222 (3d Cir., 1977).

One of the main differences between the purely negligence-based system and the unseawothiness system, and perhaps the most severe limitation on the doctrine of unseaworthiness, is that only a “condition” renders a ship unseaworthy, and that isolated, personal negligent acts are categorically excluded as a basis for liability on the part of the shipowner. Usner v Luckenbach Overseas Corp., 400 U.S. 494, 500 (1971); see also Edynak, 562 F.2d at 224 (“[U]nseaworthiness is a condition, not an act.”); Daughdrill v. Ocean Drilling & Exploration Co., 709 F. Supp. 710, 712 (E.D. La. 1989) (“[A] vessel is not deemed unseaworthy because of an isolated act of the crew, for that would destroy the distinction between unseaworthiness and negligence.”).
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Millions of passengers travel annually on cruise ships sailing from Florida ports. Thankfully, most of the voyages are uneventful in terms of negative events. However, some passengers do suffer serious personal injuries and even death through the fault of the cruise ship companies.

General Maritime Law governs cases involving cruise ship passengers, Everett v. Carnival Cruise Line, Inc., 912 F.2d 1355 (11th Cir. 1990), including for injuries and death occurring during shore excursions, so long as it happens during the “course of the cruise.” Doe v. Celebrity Cruises, Inc., 394 F.3d 891 (11th Cir. 2004); Howard v. Crystal Cruises, Inc., 41 F.3d 527 (9th Cir. 1995). Common reasons for holding cruise lines liable for shore excursion accidents are fault in screening, hiring, and retention of tour operators. Fojtasek v. NCL (Bahamas), Ltd., 613 F.Supp. 2d 1351 (S.D. Fla. 2009); Smolnikar v. Royal Caribbean Cruises Ltd., — F.Supp. 2d — (S.D. Fla. 2011).

General Maritime Law holds a shipowner to a duty of reasonable care under the circumstances. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959). With regard to dangers or risks that are not apparent and obvious, a cruise line has a duty to warn a passenger. Luby v. Carnival Cruise Lines, Inc., 633 F.Supp. 40 (S.D. Fla. 1986) aff’d 808 F.2d 60 (11th Cir. 1986).

Here is a checklist of other important considerations for cruise ship passengers:

Statute of Limitations/Notice of Accident: The courts have given the cruise ship companies some leeway in dictating how long harmed passengers have to bring claims. The restrictions will be written into the passenger ticket/contract. Typically, the statute of limitations is set at one year, while the time period for notifying the cruise ship company of an event is 6 months. This means that notice of the harm must be given to the cruise ship company within 6 months of the event and that a lawsuit must be brought against the company within 1 year of the event. The failure of a claimant to meet either of these conditions will likely bar the claim entirely.
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Injured seamen are entitled to maintenance, cure, and unearned wage benefits regardless of fault. Moreover, as long as the injury or illness occurs while the seaman remains obligated to return to the vessel if called, such as when on shore leave, the benefits should be available, and because close calls concerning coverage are supposed to favor seamen, coverage has been granted under numerous other circumstances. While the no fault aspect of the law is the same as that utilized in most state workers’ compensation systems – Florida’s workers’ compensation system is located in Chapter 440 of the Florida Statutes – the state systems are more conservative with regard to the extension of coverage for injuries occurring beyond the workplace.
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Under traditional maritime law, a seaman had no cause of action against his employer for injuries caused by the negligence of a fellow seaman. The Osceola, 189 U.W. 158 (1903). This harsh rule changed in 1920, when Congress passed the Jones Act, 46 USC App. Section 688, creating a negligence action for seamen against their employers.

Text of Jones Act on personal injuries and death:

Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

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