Where Does It Hurt: A Survey of Seaman’s Personal Injury Remedies
Hurt on land, working for some land-bound contractor, factory or shop, and chances are you will look to worker’s compensation law to pay for your care and lost wages. Working at a shipyard, and your relief comes in the form of the federal Longshore and Harborworkers Compensation Act, a sort of federalized worker’s comp program. But once you’ve signed on to a ship, ferry or fishing boat as deckhand, mate, oiler or steward, if you are hurt you will seek help in a complex collection of maritime law, some recent and some among the oldest law on the planet. Here’s an overview.
A. Maintenance and Cure. Maintenance and Cure is the ancient obligation of the shipowner to give an ill or injured sailor “cure”, or medical care, and “maintenance”, or a little money on which to get by while getting better. M and C has the lowest threshold for any maritime injury remedy: If you worked on the boat, and you get ill or injured, you get M and C. M and C applies to all crew, even a steward scooping ice cream. The illness doesn’t have to have anything to do with the boat: you get M and C if you are disabled by illness or injury while you are crew.
There are a few defenses to the obligation to pay M and C. These include: lying to the employer about a pre-existing medical condition, getting hurt while drunk or doped up, starting a fight in which you get hurt, and getting hurt while willfully disobeying an order.
The money’s not great. Often a crew contract sets M and C at some low rate such as $25.00/day. You also get crew wages to the end of the voyage or to the end of the pay period if you are not on a voyage. If a fisherman is hurt, he gets the same share he would have received for the trip. If he’s signed on for a season, he may be able to get the pay he’d have received had he finished out the season.
B. Jones Act Negligence. 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.
You can see that Jones Act negligence is different from M and C in requiring 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 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 condition caused the injury. Generally speaking, however, Jones Act negligence is easier to prove compared to negligence by land. For example, on land the negligence has to be a major cause of the injury. By sea, the negligence can be just a small factor in the circumstance that caused the injury.
What form does Jones Act negligence take? It 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.
Jones Act negligence is often proved with the use of experts in the use of the equipment or in the activity that caused the injury. These experts will testify to the “standard of care”: how a carefully run ship would have tried to avoid the dangerous condition. A violation of a safety regulation, for example a Coast Guard rule, may be evidence of Jones Act negligence.
Comparative negligence is a defense to Jones Act negligence. That means a sailor’s award can be reduced or eliminated in proportion to the amount by which his or her own carelessness contributed to the injury.
What is the remedy when a sailor proves he or she was injured as a result of Jones Act negligence? The sailor can recover for medical bills (past and future), disfigurement, lost wages, pain and suffering and loss of enjoyment of life. In certain cases awards may be very high indeed. Loss of consortium ( a spouse’s remedy for loss of the company and services of the injured party) is not available.
C. Unseaworthiness. A boat owner warrants – unconditionally promises – the crew that the ship will reasonably fit for its intended use. If the boat is badly designed or badly loaded and sinks, or if hull plating is thin and gives way, or if a radar goes down and the ship thereby is in a collision, or if the crew is too small and becomes exhausted and someone gets hurt, or if the deck tiles becomes greasy with fish oil, or if a boom drops because of 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.
I started with concepts even a lubber would know to be “unseaworthy” and progressed to chopping ice cream with a knife, to show you the scope of this generous remedy.
Let’s go back to that promise, or warranty, that the boat will be seaworthy, and contrast that with Jones Act negligence. Recall the banana in the supermarket: it’s not negligent to allow a mashed banana to lie on the floor unless a reasonably careful store would have learned about it and cleaned it up before the plaintiff slipped. If the banana’s there for a minute before the accident, no negligence; if it’s there for an hour and maybe someone already complained, negligence. Similarly, 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, or unless there was a regulation requiring testing.
Unseaworthiness is different. 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. Unlike the banana in the market, 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. 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.
The remedies for unseaworthiness are the same as for Jones Act negligence, so awards can be very high. Loss of consortium is not available. The sailor’s carelessness can be a defense (comparative negligence). For officers or those in a command capacity, there is the additional defense called “primary duty.” Example: If I, chief mate on a tanker, decide to go into a hold to patch a pipe despite knowing there is some loose dunnage rolling around, and the dunnage hits and hurts me, I may not be able to recover.
D. A Final Word. Maintenance and Cure, Jones Act Negligence and Unseaworthiness have one thing in common: they are available only to crew. But bear in mind that there is a huge body of law on who is “crew” for the purposes of these remedies. Don’t guess whether you are or are not crew for the purposes of maritime personal injury law. It is often hard enough for even an experienced admiralty lawyer to make the call. Statutes of limitation are short, so don’t wait.