Maritime Injuries Needing Maritime Lawyers
October 30, 2009 By Gordon, Elias & Seely, LLP - Offshore Injury Lawyers
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Maritime injuries and accidents can occur in a myriad of situations. Depending upon the location of injury and the nature of the situation, e.g., whether it was a commercial accident or a non-commercial situation, governs whether you need a maritime lawyer or just a regular personal injury lawyer. Clearly, injuries on a jet ski, or a party pontoon boat can be very injurious, but they do not require a maritime lawyer specialized in the legal principals of General Maritime Law and the Jones Act.
General Maritime Law is a body of law developed by the federal courts through jurisprudence. The federal courts have an Admiralty “side” bestowed upon them from the United States Constitution. This Admiralty side is a court of equity as well as court of law.
The Jones Act was enacted by Congress in and around 1916. It actually is a culmination of a series of three laws passes between 1916 and 1920. The Jones act was named after its principle proponent, Senator Wesley Jones (1863-1932) from the state of Washington, urged passage of a law that would support the growing merchant marine industry of the United States. In light of this, The Jones Act became law at 46 U.S.C. §688 et seq. (re-codified in 2006 at 46 U.S.C. §30104 et seq.). The Jones Act covers maritime employees that sustain an injury while in the course and scope of employment.
Is the Jones Act the Same as Workers’ Compensation?
No. It is quite different. Workers’ Compensation is available to an employee who “suffers an injury while in the course and scope of employment”. Notice in the previous sentence there is absolutely no discussion of “fault”. That is because workers’ compensation is not based upon fault. The employee could be one hundred (100%) percent at fault for causing his injuries and still collect all of his compensation benefits. In exchange for receiving those workers’ compensation benefits, the employee gives up the common law right to sue his employer and accepts the workers compensation as the sole remedy when he starts his employment relationship.
On the other hand, to qualify under the Jones Act, one has to meet the following elements:
1) You have to sustain an in injury
2) While working permanently assigned;
3) To a vessel;
4) That is on a navigable waterway; and
5) The injury has to be caused by the:
a. Negligence of a fellow crewmember; and/or
b. An “unseaworthy” condition
As you can see, there is a fault element to the Jones Act claim. When the judge or jury assesses the fault, they look at all the parties’ fault including the plaintiff. For example, if a jury finds the injured employee 100% fault but yet awards one hundred dollars, the injured employee would receive zero dollars. The Jones Act claim is a “pure comparative” type claim. That is, in most states, if the injured party makes a claim and the jury finds the injured part 50.01% negligent in causing his own injuries, he receives nothing because his percentage share of his negligence is greater than fifty percent. This is a called a modified contributory negligence bar. However, there is no such “bar” in a Jones Act claim. For example, using the example of a jury award of $100.00: (a) if the plaintiff is found 30% negligent, then he would receive $70.00; (b) if the plaintiff was held to be 70% negligent, then he would receive $30.00.
What are the Economic Differences between the Jones Act and Workers’ Compensation?
The differences can be huge. Comp is governed by a statutory scheme in the state that you work in. It is generally governed by a “Table of Injuries”, e.g., a lost foot is worth a certain amount of weeks disability; an injured back so many weeks and so on and so on. Under comp, you give up your common law right to sue your employer when you take the job.
On the other hand, a Jones Act claim can be asserted for medical bills, lost wages, loss of earning capacity, physical suffering, mental anguish, physical disfigurement, physical impairment and other damages. It is not unusual to have a spine injury that is worth six or seven figures depending upon the earnings of the injured seaman at the time of his injury.
Is Maintenance & Cure the Same as a Jones Act Claim?
“Maintenance” is a daily payment due and payable to an injured seaman while he has not reached “maximum medical improvement”. It is similar to workers compensation in that it is regardless of fault. In other words, you can be hurt as a seaman and you may have totally caused your injuries but you are still entitled to “maintenance”. The amount of “maintenance” is governed by how much it costs to “house” and feed the injured seaman on board the vessel before the injury occurred. It has been as low as $8.00 a day and as high as $60.00 a day. Practically, $30.00 a day or $600.00 a month is usually paid.
“Cure” means medical care. When a seaman sustains an injury, he is entitled to reasonable and necessary medical care. Like “maintenance”, it too is owed by the maritime employer regardless of fault.
Both “maintenance” and “cure” are, in the law, considered “quasi-contractual” debts in nature. That is, unlike the Jones Act which sounds in tort and is only paid when fault has been established, maintenance and cure is paid because it arises out of the employment relationship between the seaman and the maritime employer.
Finally, in June, 2009, the United States Supreme Court decided the Atlantic Sounding Co., Inc. et al. v. Edgar L. Townsend case which held that punitive damages are, in fact, recoverable when the Jones Act employer unreasonably withholds payment of maintenance and/or medical cure.
What Type of Seaman is Covered & What is a Vessel?
Captains, engineers, able-bodied seaman [A/B], wipers, deckhands, roustabouts and many other types of seaman are covered. The beauty about the Jones Act is that it is the same law whether you are hurt fishing off Alaska; working on a tow boat on the Mississippi or you work in the “oil patch” of the Gulf of Mexico.
With the constant innovations of extracting oil from the sea-bed floor, what is a vessel is still being litigated. The general belief is that rule enunciated in Stuart v. Dutra that if it is capable of transporting property of persons upon water, then it is considered a vessel.
Why Do You Need a Maritime Lawyer?
As you can see, making a Jones Act claim is quite different from a workers’ compensation claim. The Jones Act employer is usually insured by maritime insurers that have been insuring in the maritime industry for at least a hundred years. When an injury occurs, they have investigators that immediately go out to take statements to build a case against you. Their goal is to show that the injury is the fault of the injured employee and the injured employee is not that hurt.
An injured seaman needs an experienced maritime Jones Act lawyer to get him to a doctor so that all of his injuries can be documented properly; to get his maintenance and cure started and to build his negligence and/or “unseaworthiness” claim. This would be impossible for a seaman to effectively and successfully try to “go it alone”. Most Jones Act lawyers work on a contingency fee. That is, the seaman pays nothing to the lawyer unless he recovers money. Fee percentages range from 33 1/3% to 45%.
Finally, making a claim takes time and you will need money to pay your bills while the maritime litigation is pending. Maintenance is usually insufficient to pay the bills. Some lawyers, depending upon the state they practice in, are ethically permitted to advance funds to their client so they do not have to go back early to work and when they are not medically ready to go back to work.
ABOUT THE AUTHOR: Steve Gordon & R. Todd Elias are Maritime Lawyers
Steve Gordon is Board Certified in Personal Injury Trial Law and is an active Member in the American Association of Justice in The Maritime Law Section; he is also a Member in the Maritime Law Association.
R. Todd Elias is an active Member in the American Association of Justice in The Maritime Law Section; he is also a Member in the Maritime Law Association.
Copyright Gordon, Elias & Seely, LLP - Offshore Injury Lawyers
More information about Gordon, Elias & Seely, LLP - Offshore Injury Lawyers
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
The Jones Act was enacted by Congress in and around 1916. It actually is a culmination of a series of three laws passes between 1916 and 1920. The Jones act was named after its principle proponent, Senator Wesley Jones (1863-1932) from the state of Washington, urged passage of a law that would support the growing merchant marine industry of the United States. In light of this, The Jones Act became law at 46 U.S.C. §688 et seq. (re-codified in 2006 at 46 U.S.C. §30104 et seq.). The Jones Act covers maritime employees that sustain an injury while in the course and scope of employment.
Is the Jones Act the Same as Workers’ Compensation?
No. It is quite different. Workers’ Compensation is available to an employee who “suffers an injury while in the course and scope of employment”. Notice in the previous sentence there is absolutely no discussion of “fault”. That is because workers’ compensation is not based upon fault. The employee could be one hundred (100%) percent at fault for causing his injuries and still collect all of his compensation benefits. In exchange for receiving those workers’ compensation benefits, the employee gives up the common law right to sue his employer and accepts the workers compensation as the sole remedy when he starts his employment relationship.
On the other hand, to qualify under the Jones Act, one has to meet the following elements:
1) You have to sustain an in injury
2) While working permanently assigned;
3) To a vessel;
4) That is on a navigable waterway; and
5) The injury has to be caused by the:
a. Negligence of a fellow crewmember; and/or
b. An “unseaworthy” condition
As you can see, there is a fault element to the Jones Act claim. When the judge or jury assesses the fault, they look at all the parties’ fault including the plaintiff. For example, if a jury finds the injured employee 100% fault but yet awards one hundred dollars, the injured employee would receive zero dollars. The Jones Act claim is a “pure comparative” type claim. That is, in most states, if the injured party makes a claim and the jury finds the injured part 50.01% negligent in causing his own injuries, he receives nothing because his percentage share of his negligence is greater than fifty percent. This is a called a modified contributory negligence bar. However, there is no such “bar” in a Jones Act claim. For example, using the example of a jury award of $100.00: (a) if the plaintiff is found 30% negligent, then he would receive $70.00; (b) if the plaintiff was held to be 70% negligent, then he would receive $30.00.
What are the Economic Differences between the Jones Act and Workers’ Compensation?
The differences can be huge. Comp is governed by a statutory scheme in the state that you work in. It is generally governed by a “Table of Injuries”, e.g., a lost foot is worth a certain amount of weeks disability; an injured back so many weeks and so on and so on. Under comp, you give up your common law right to sue your employer when you take the job.
On the other hand, a Jones Act claim can be asserted for medical bills, lost wages, loss of earning capacity, physical suffering, mental anguish, physical disfigurement, physical impairment and other damages. It is not unusual to have a spine injury that is worth six or seven figures depending upon the earnings of the injured seaman at the time of his injury.
Is Maintenance & Cure the Same as a Jones Act Claim?
“Maintenance” is a daily payment due and payable to an injured seaman while he has not reached “maximum medical improvement”. It is similar to workers compensation in that it is regardless of fault. In other words, you can be hurt as a seaman and you may have totally caused your injuries but you are still entitled to “maintenance”. The amount of “maintenance” is governed by how much it costs to “house” and feed the injured seaman on board the vessel before the injury occurred. It has been as low as $8.00 a day and as high as $60.00 a day. Practically, $30.00 a day or $600.00 a month is usually paid.
“Cure” means medical care. When a seaman sustains an injury, he is entitled to reasonable and necessary medical care. Like “maintenance”, it too is owed by the maritime employer regardless of fault.
Both “maintenance” and “cure” are, in the law, considered “quasi-contractual” debts in nature. That is, unlike the Jones Act which sounds in tort and is only paid when fault has been established, maintenance and cure is paid because it arises out of the employment relationship between the seaman and the maritime employer.
Finally, in June, 2009, the United States Supreme Court decided the Atlantic Sounding Co., Inc. et al. v. Edgar L. Townsend case which held that punitive damages are, in fact, recoverable when the Jones Act employer unreasonably withholds payment of maintenance and/or medical cure.
What Type of Seaman is Covered & What is a Vessel?
Captains, engineers, able-bodied seaman [A/B], wipers, deckhands, roustabouts and many other types of seaman are covered. The beauty about the Jones Act is that it is the same law whether you are hurt fishing off Alaska; working on a tow boat on the Mississippi or you work in the “oil patch” of the Gulf of Mexico.
With the constant innovations of extracting oil from the sea-bed floor, what is a vessel is still being litigated. The general belief is that rule enunciated in Stuart v. Dutra that if it is capable of transporting property of persons upon water, then it is considered a vessel.
Why Do You Need a Maritime Lawyer?
As you can see, making a Jones Act claim is quite different from a workers’ compensation claim. The Jones Act employer is usually insured by maritime insurers that have been insuring in the maritime industry for at least a hundred years. When an injury occurs, they have investigators that immediately go out to take statements to build a case against you. Their goal is to show that the injury is the fault of the injured employee and the injured employee is not that hurt.
An injured seaman needs an experienced maritime Jones Act lawyer to get him to a doctor so that all of his injuries can be documented properly; to get his maintenance and cure started and to build his negligence and/or “unseaworthiness” claim. This would be impossible for a seaman to effectively and successfully try to “go it alone”. Most Jones Act lawyers work on a contingency fee. That is, the seaman pays nothing to the lawyer unless he recovers money. Fee percentages range from 33 1/3% to 45%.
Finally, making a claim takes time and you will need money to pay your bills while the maritime litigation is pending. Maintenance is usually insufficient to pay the bills. Some lawyers, depending upon the state they practice in, are ethically permitted to advance funds to their client so they do not have to go back early to work and when they are not medically ready to go back to work.
ABOUT THE AUTHOR: Steve Gordon & R. Todd Elias are Maritime Lawyers
Steve Gordon is Board Certified in Personal Injury Trial Law and is an active Member in the American Association of Justice in The Maritime Law Section; he is also a Member in the Maritime Law Association.
R. Todd Elias is an active Member in the American Association of Justice in The Maritime Law Section; he is also a Member in the Maritime Law Association.
Copyright Gordon, Elias & Seely, LLP - Offshore Injury Lawyers
More information about Gordon, Elias & Seely, LLP - Offshore Injury Lawyers
View all articles published by Gordon, Elias & Seely, LLP - Offshore Injury Lawyers
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
