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, and including the Jones Act. 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 of proof of any maritime injury remedy: If you worked on the boat, and you get ill or injured, there is a presumption that you get M and C. The illness doesn’t have to have anything to do with the boat. M and C applies to all crew, even a steward scooping ice cream.
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.
The failure of the employer to provide maintenance and cure can be the basis for a claim against the employer. If the employer is found to have wrongfully denied M and C, and the seaman has to sue, there can be a big attorney’s fee award. Perhaps more important, he Supreme Court recently held that punitive damages may be awarded for wrongfully failing to pay Maintenance and Cure. Punitive damages are that portion of a judgment intended to punish the defendant, and to make an example of the defendant, for a serious civil wrong. The damages are normally related to the financial ability of the defendant to pay, and to the seriousness of the wrongdoing, and may bear little relation to the degree of actual damages suffered by the plaintiff.
The obligation to pay M and C ends when the sailor has reached Maximum Medical Improvement. Even if he or she is still disabled, the remedy ends when the sailor’s health has recovered about as much as it ever will.
B. Jones Act Negligence. Traditionally maritime law gave sailors no remedy (apart from M and C) if the owner’s negligence injured him. 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 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. 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 solid evidence of Jones Act negligence.
Comparative negligence is a defense to a Jones Act claim. 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; nor are punitive damages,
C. Unseaworthiness. Under general maritime law a ship owner warrants – unconditionally promises – to the crew that the ship is 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 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.
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 – for example, 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. In contrast to the banana on the market floor, 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 sailor’s carelessness (“comparative negligence”) can be a defense. For officers or others in a command capacity, there is the additional defense called “primary duty.” Example: If I, chief mate on a freighter, 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.
The remedies for unseaworthiness are similar to those for Jones Act negligence, so awards can be very high. Loss of consortium is not available in the First Circuit (New England), but other courts may allow it – the law is evolving here.
There is a split among the courts as to whether punitive damages are available in Unseaworthiness actions. SomeCaliforniastate court cases, applying general admiralty law, have allowed punitive damages in Unseaworthiness cases, but state court decisions carry small weight in seaman’s personal injury law. A March 2012 judgment in theFederal District CourtforMissouriallowed punitive damages (In Re Osage Marine Services), with well-articulated reasoning. It remains to be seen if this judgment will hold up on appeal, and the influential Fifth Circuit (GulfCoaststates) and the First Circuit (New England) do not allow punitive damages. So this area of the law is unsettled and I assume the U.S. Supreme Court will clarify the issue before long.
D. A Final Word, and a Warning! Maintenance and Cure, Jones Act Negligence and Unseaworthiness have one thing in common: They are available only to seamen. But bear in mind that there is a huge and sometimes conflicting body of law on who is a “seaman” for the purposes of these remedies. And the remedies are available only if the injury occurred on a “ship” which is in “navigation”. Lawyers and judges have written literally millions of words trying to provide rules for when an injured employee is a seaman, what is and isn’t a ship, and when a ship is in navigation (hint: it can be in drydock and still be in navigation).
Don’t guess, if you were a steward assigned to a permanently moored work barge, or to a spud barge with legs deep in the sea floor, or to a tug halfway through a twelve month drydock, whether you were a Jones Act seaman injured on a ship in navigation. It is often hard enough for even an experienced admiralty lawyer to make the call.
And please: don’t settle a significant claim without consulting an admiralty attorney. The company lawyers and insurance company lawyers are among the best, and you can pretty much count on getting a raw deal if you do not have a good lawyer negotiating for you. Statutes of limitation are short, so don’t wait.
My office works with the best admiralty lawyers and industry experts in the country to put together a team. We know who is best for each different type of case and can guarantee you highly competent representation, representation that gets cases done and done right. Happy to talk.
Nicholas Walsh is an admiralty attorney with an office in Portland, Maine. He has a national practice, and may be reached at 207-772-2191, or nwalsh@gwi.net.