A seaman covered by the Jones Act contracts Covid from another crewmember and suffers long term illness (long Covid). Is the ship liable to the sailor, under either the Jones Act or the Unseaworthiness doctrine?
Here’s a brief recap of the remedies available to an injured sailor. The Jones Act is federal law requiring the employer to provide a safe ship and allowing the sailor to sue if the owner is careless (negligent) in allowing an unsafe condition to hurt the sailor.
The Jones Act requires the sailor to show some fault on the part of the employer. In that respect it’s like the tort law we find on land: If I slip at the market on a rotten banana, I can win compensation for my busted head only if I can show the market was careless, for example if it knew the fruit was on the floor and needed to be cleaned up but for no good reason didn’t get to it. On a boat, an injured sailor can get damages for Jones Act negligence only if he or she can show that the owner without a good excuse allowed some dangerous condition to occur and that the condition caused the injury.
Jones Act negligence could be almost anything: a flawed shackle that should have been X-rayed but wasn’t, a fellow sailor who was a dangerous drunk and the captain knew it but let him drink; a deckplate hatch left open without temporary rails set up, sailing into known bad weather, a chain guard left off a winch to make it easier to service – the list is endless. A sailor who wins the case can recover for medical bills (past and future), disfigurement, lost wages, pain and suffering and loss of enjoyment of life.
Apart from the Jones Act, sailors have the remedy of Unseaworthiness. Under general maritime law a ship owner unconditionally promises to the crew that the ship is reasonably fit for its intended use. If the boat is badly designed and sinks, if hull plating is thin and gives way, if a radar goes down and the ship thereby is in a collision, if the crew is too small and becomes exhausted and someone gets hurt, if the deck tiles becomes greasy with fish oil, if a boom drops because of a bad shackle, or if a cook cuts his hand chopping ice cream with a knife because the ship doesn’t have a better tool, the boat is Unseaworthy.
Contrast that with Jones Act negligence. In Jones Act negligence, it’s not negligent to use a brand name shackle that happens to have a dangerous hidden flaw unless a reasonably careful owner would have known of the need to have it tested – if, for example, there was a regulation requiring testing. Unseaworthiness is different. Unseaworthiness is a promise that the ship will be reasonably fit for its intended use, and that promise is not conditioned on whether the shipowner knew or should have known about the hazard. In fact, it is Unseaworthy to use a flawed shackle even if there is no way the owner could have suspected it was flawed and even if there was no industry standard or rule requiring the owner to test the shackle. It’s “unseaworthy” to have a ladder with greasy rungs, even if the sailor who falls down the ladder does so only a minute after the grease got there.
As you can see, both the Jones Act and Unseaworthiness provide a potential recovery for a sailor injured or killed by Covid. The Jones Act applies if the ship owner was careless in procedures (testing, cleaning, crew quarantine etc.) which might have prevented the spread of the disease on board, and Unseaworthiness may apply even if precautions were taken but the disease spread anyway, under the theory that a ship infected with communicable disease is Unseaworthy.
The big issue is likely to be proving that the Covid-stricken sailor contracted Covid on board the ship. At trial, the sailor would have to prove that, but-for the presence of Covid on board, he or she would not have been infected. However, the standard of proof is “by a preponderance”, rather than, for example, the much stricter “beyond a reasonable doubt” standard used in criminal trials. Proof that there was a Covid-infected sailor on board, that the crew messed together, bunked together and worked together, all would go far toward proving the case.
Damages to a winning plaintiff may be large. A sailor who wins the case can recover for medical bills (past and future), lost wages, pain and suffering and loss of enjoyment of life. Were the sailor to die of Covid, his or her estate may recover for his lost future income.
I have several of these cases right now. The first one just settled, for a large sum. If you are a mariner, and got Covid on board, call me!