Houston Maritime Lawyer
What is the Jones Act?
The Jones Act, 46 U.S.C. 688 (1970), is an Act of Congress, which governs the liability of vessel operators and marine employers for the work-related injury or death of an employee. It is a federal cause of action, meaning that the United States Congress intended for all seamen’s injuries throughout the nation to be guided by the same liability standards. Although the Jones Act protects seamen, it is not the same as workers’ compensation. It does not require that maintenance & cure payment are paid to the injured seaman, regardless of fault. In order to have a separate Jones Act Lawsuit however, a worker must prove some negligence or fault on the part of the vessel’s owners, operators, officers, and/or fellow employees or by reason of any defect in the vessel, its gear, tackle, or equipment.
In essence, the Jones Act provides an injured seaman a remedy under maritime law against his or her employers for injuries arising from negligent acts of the employer or co-workers during the course of employment on a vessel. This means that the employer must do something unreasonable or fail to perform a reasonable act that would have prevented injury in order for the seaman to win his claim Claims brought under the Jones Act can also raise claims against a vessel’s owner that a vessel was unseaworthy.
WHO IS A JONES ACT SEAMAN?
One of the central questions in any maritime injury case is whether the injured party is a seaman, since only a seaman can recover under the Jones Act. A seaman is a member of the crew of a vessel or someone who assigned to a vessel or a fleet of vessels. For example, those who work on tankers, freighters, jack-up rigs, semi-submersibles, towboats / tugs, supply boats, crew boats, barges, lay barges, and fishing vessels are members of the crew are considered seamen. (Other Vessels)
Those who are crew members on movable or jack-up drilling rigs are also seamen. Officers and crew are all considered seamen. Longshoremen, pilots, and those who work on fixed platforms are not seamen, but have other maritime remedies available for injuries.
Often there is a dispute as to seamen status and whether the seaman was working on a vessel when he was injured. It is very important to allow the maritime injury attorney to study the facts surrounding the accident and the vessel to help make the determination of seaman status and to which law should apply.
The essential requirements for seaman status are:
(a). An employee’s duties must contribute to the function of the vessel or to the accomplishment of its mission;
(b). A seaman must have a connection with a vessel in navigation (or to an identifiable group of such vessels), that is substantial in terms of both its duration and its nature ;
(c). The duration of a worker’s connection to a vessel and the nature of the worker’s activities, taken together, determine whether a maritime worker is a seaman because the ultimate inquiry is whether the worker in question is a member of the vessel’s crew or simply a land-based employee who happens to be working on a vessel at a given time;
(d). A distinction must be made between sea-based workers and land-based workers who have only a transitory or sporadic connection to a vessel in navigation. Land-based maritime workers do not become seamen because they happen to be working aboard a vessel when they are injured, and seamen do not lose Jones Act protection where the course of their service to a vessel takes them ashore. In evaluating the employment-related connection of a maritime worker to a vessel in navigation, courts should not employ a “snapshot” test for seamen status, inspecting only the situation as it exists at the instant of injury; but rather, the total circumstances of an individual’s employment must be weighed to determine whether he has a sufficient relation to the vessel and
(e) Jones Act coverage( seaman status ) depends not on the place where the injury is inflicted, but on the nature of the seaman’s service, his status as a member of the vessel, and his relationship as such to the vessel and its operation in navigable waters.
MAINTENANCE AND CURE
If a seaman becomes injured on a vessel, regardless of the fault of the vessel or its operators, his or her legal remedy is called maintenance and cure.
“Maintenance” is a small daily compensation designed to provide the food and shelter that would have been provided to the seaman while aboard the vessel. Today, maintenance rates range from $10 to $45 per day, unless there is a Collective Bargaining Agreement which can reduce the number as low as $8 per day, especially on vessels subcontracted to the DOD in times of war as we find our self’s in.
“Cure” is the obligation of the seaman’s employer to provide medical treatment, prescription drugs, nursing services, hospitalization, rehab & therapy, until the seaman reaches maximum medical improvement. Maximum medical improvement means that the seaman’s condition will not improve any further or he is permanently disabled. When a seaman reaches maximum medical improvement, the vessel owner’s obligation to pay maintenance and cure ceases, regardless of whether the seaman can return to work or not .
The seaman has a right to his choice of physicians and does not have to accept treatment by his employer’s choice of physician. If an employer refuses to pay maintenance and cure, the employer can be held liable for damages and attorneys’ fees.
The vessel owner owes the seaman a strict and absolute duty to provide a seaworthy vessel. A seaworthy vessel is one that is reasonably fit for its intended use, it should be a safe place to work and live. A seaworthy vessel should be equipped with appropriate safety gear and equipment, safe recreation facilities, and a competent crew. The duty owed to a seaman is more rigorous than the seaworthiness promised in a contract for the carriage of marine cargo.In addition to holding a seaman’s employer responsible for the negligent acts of its employees and officers, a seaman can recover if he can prove that the vessel was unseaworthy and that he was injured as a result.
A vessel that is unseaworthy does not mean that it is in danger of sinking. A vessel is unseaworthy if a piece of equipment breaks or is inoperable, the vessel’s crew is too small or incomplete, not adequately trained, or a condition such as oil, grease or rust exists where it is not intended to exist and the unseaworthy condition is a direct cause of injury to the seaman.
In other words, negligence focuses on acts of the seaman’s employer, and unseaworthiness focuses on the condition or inadequacy of the vessel itself. Unlike the Jones Act claims, which is against the seaman’s employer, an unseaworthiness claim is made against the vessel’s owner. In many cases those actions will be against the same party.
A unseaworthiness claim will bring the owner into a lawsuit as an additional source of recovery for the seaman. As with the Jones Act, an unseaworthiness claim must be filed within three years of the injury, and must be combined with a Jones Act claim.
JONES ACT- STATUTE OF LIMITATIONS
The Statute of Limitations in a Jones Act case is generally three (3) years from the date of the injury. There are exceptions to this general rule, however such as seaman assigned to vessel owned, operated, or contracted by the United States government. Actions against the vessel owner for unseaworthiness, must also be brought within three (3) years from the date of the seaman’s injury.
CAUTION !! There are other situations in which a Jones Act casue of action or lawsuit is not available to the injured worker or that it is not the best choice of remedies or cause of action available to the maritime plaintiff. In those situations the injury and the applicable facts may be governed under a Statute of Limitations as SHORT AS ONE YEAR from the date of the negligent act in question. It is for this reason alone to see a martime lawyer as soon as possible to investigate the facts of your case. Once a Statute of Limitations to file a claim or suit passes, it is very difficult and most of the times impossible to restore.
LEGAL DAMAGES UNDER THE JONES ACT?
An injured worker under the Jones Act lawsuit or claim can seek to recover the following legal damages:
• (Past Loss Income) Wages lost from the time of the injury to the time of trial ;
• (Future Loss Income) Wages loss in the future;
• Medical expenses in the past and in the future; and pain, suffering, disfigurement and mental anguish in the past and in the future.
SEAMAN STATUS UNDER THE JONES ACT
One of the central questions in any maritime injury case is whether the injured party is a seaman, since only a seaman can recover under the Jones Act. A seaman under the Jones Act must be a member of the crew of a vessel. A seaman can also be someone who assigned to a fleet of vessels for his employer. Whether person is seaman for purposes of 46 USCS Appx § 688 depends largely upon facts of particular case and activity in which he was engaged at time of injury; whether person has been in past, or expects in future to be, seaman does not render maritime work which is not maritime in its nature. Desper v Starved Rock Ferry Co. (1952) 342 US 187, 96 L Ed 205, 72 S Ct 216, reh den 342 US 934, 96 L Ed 695, 72 S Ct 374
For example, those who work on tankers, freighters, jack-up rigs, semi-submersibles, towboats / tugs, supply boats, crew boats, barges, lay barges, and fishing vessels are members of the crew are considered seamen. Those who are crewmembers on movable or jack-up drilling rigs are seamen.Congress, in passing Longshore and Harbor Workers’ Compensation Act, limited application of term “seaman” in JonesAct to “a master or member of a crew of any vessel.” Mietla v Warner Co. (1975, ED Pa) 387 F Supp 937.
The Captain, the Officers and the crew are all considered seamen. Longshoremen, pilots, and those who work on fixed platforms are not normally classified as seamen, but may have other maritime remedies available for to them for their injuries.
To be Jones Act seaman entitled to sue for negligence, as well as breach of warranty of seaworthiness, but not entitled to longshoremen’s compensation, vessel must be in navigation, there must be more or less permanent connection with ship, and worker must be aboard naturally and primarily as aid to navigation. Salgado v M. J. Rudolph Corp. (1975, CA2 NY) 514 F2d 750.
Often there is a dispute as to seamen status and whether the seaman was working on a vessel when he was injured. It is therefore very important to allow the maritime attorney to study the facts surrounding the accident and the vessel to help make the determination of seaman status.
The essential requirements for seaman status are:
• (a). An employee’s duties must contribute to the function of the vessel or to the accomplishment of its mission;
• (b). A seaman must have a connection with a vessel in navigation (or to an identifiable group of such vessels), that is substantial in terms of both its duration and its nature
• (c). The duration of a worker’s connection to a vessel and the nature of the worker’s activities, taken together, determine whether a maritime worker is a seaman because the ultimate inquiry is whether the worker in question is a member of the vessel’s crew or simply a land-based employee who happens to be working on a vessel at a given time
• (d). A distinction must be made between sea-based workers and land-based workers who have only a transitory or sporadic connection to a vessel in navigation.Land-based maritime workers do not become seamen because they happen to be working aboard a vessel when they are injured, and seamen do not lose Jones Act protection where the course of their service to a vessel takes them ashore.
In evaluating the employment-related connection of a maritime worker to a vessel in navigation, courts should not employ a “snapshot” test for seamen status, inspecting only the situation as it exists at the instant of injury; but rather, the total circumstances of an individual’s employment must be weighed to determine whether he has a sufficient relation to the vessel and
• (e) Jones Act coverage (seaman status) depends not on the place where the injury is inflicted, but on the nature of the seaman’s service, his status as a member of the vessel, and his relationship as such to the vessel and its operation in navigable waters.
WHY CONSULT WITH A JONES ACT OR MARITIME LAWYER ?
If you are a seaman or other maritime worker and you have been seriously injured and believe that your injuries may prevent you from keeping your job or prevent you in getting another job, then you probably need to speak with a lawyer. The maritime industry is well known for trying to find someone other than themselves to blame for an accident, especially when it involves a serious injury or signifiant loss.
Soon after a serious accident the maritime company or vessel owner will call its investigators and lawyers to start to document the scene, secure any evidence, interview witnesses, obtain recorded statements, take affidavits and other pre-trial maneuvers in order to show the accident or your injuries were not their fault.
The more serious the accident, the faster the response. One of the main reasons that the company will hire lawyers to do the investigation, is so that they can claim that the evidence is privileged and confidential. This argument is used when the evidence or statements or investigation shows fault on behalf of the company. When the evidence shows that the injured party was at fault, the privilege is rarely raised. The company will also want to interview you and get your side of the facts.
CAUTION ! Whenever you are speaking to an investigator over the phone there is a high chance you are being recorded, and that recording may come back and haunt you. Often the employer will tell the injured worker that “we will take care of you”, or ” don’t worry, you will always have a job with us ” or even ” if you hire a lawyer and file a claim we will cut off your benefits” .
Other areas of concern involve your medical care or cure. There are some employers who sincerely want you to get better and want to work with you to that end. There are many, however, who simply want you to go away. They think you aren’t hurt, it’s all in your head, you are a fraud and a malingerer, and if you are hurt, it’s your own fault anyway. The bigger maritime employers now have their approved doctors to whom they say you must go.
Usually, the employer will maintain a dialog with your doctor and will know as much as or more than you do about your medical situation. Many times, the doctor will have to talk to the employer about his plans to get approval for payment. (So much for the doctor/patient privilege, huh?)
WHO DOES THIS REHAB NURSE REALLY WORK FOR?
Many employers will even assign a “rehab nurse” to your case to go with you to your appointments and actually sit in on the doctor’s examinations. You now have an advocate for your employer sitting in on your privileged communications with your doctor and, in most cases, leaving the room with the doctor for private conferences out of your presence. Think about that for a moment. We have evolved to a situation where the employer’s advocate is given more private information and confidentiality regarding your medical care than you, the patient, are. (Who do you think will be at the top of your employer’s witness list if your case goes to trial? Don’t be surprised if your former best friend, the “rehab nurse,” does not remember all your conversations with the doctor the same way you do.)
One suggestion is to first, do not let anyone attend your appointments with you except members of your own family. Politely suggest to your doctor and to the employer’s rehab nurse that you would like to maintain your privacy and you would appreciate being allowed to maintain the doctor/patient privilege. They may be persistent, but you can too.
Second, you are entitled to see a doctor of your choice. Talk to friends, family, or your long-time family physician and get a referral to a specialist. Do not sign any blanket waivers of the doctor/patient privilege and let your doctor know that you would rather that he not talk to anyone but you about your care. The employer is entitled to know what the doctor finds and plans, but this should be done in writing, either in the form of letters or office notes. You should receive copies of all communications between the doctors and your employer.
Third, if you are not satisfied with the advice you are getting from a doctor, get a second opinion. Medicine is an art, and two doctors can see the same situation differently. Most employers will welcome a second opinion and, if they don’t, you should reconsider whether their goals are the same as yours.
JONES ACT EMPLOYEES RIGHT TO MAINTENANCE
Most employers will pay you the “maintenance” plus some additional money which they will consider an “advance” against what they might owe you in the future (if you happen to hire a lawyer and sue them).
Most employers will have you sign a document which acknowledges that the advance portion of the payment is just that, an advance, and they are entitled to get that part back if you go back to work or if they settle with you.
If you hire an attorney and file suit, you still are entitled to receive maintenance. Most employers will stop any advances at that point. Some employers will even cut off your maintenance, but they should not do so. If the employer wrongfully cuts off the maintenance, your only remedy is to sue them and try to recover attorneys’ fees. If you incur hardships because the employer cuts off maintenance, you can sometimes recover for those hardships also.
COMPANY TELLS YOU THEY ARE GOING TO SETTLE WITH YOU
Often the company or the adjuster will call you and tell you that they want to sit down and talk to you and work out a settlement with you. Many times they will have you come to the home office to discuss a settlement. It is during this meeting they will make you seem like family and how they are here to help take care of you. They will also discuss getting you back out on the boat as soon as possible.
It is now they will start off asking, the employee (seaman), how much money he wants to settle this injury claim. The employee then names a figure which often is very reasonable, and immediately his boss says….” come on get reasonable… you know we can’t pay that kind of money to you… now tell us what is your bottom line you got to have ?..” In order to try and please the employer and not get on their badside, often the employee will name a figure 1/10 to 1/4 of what the case is really worth and in a matter of 5 minutes of heavy handed, one-sided negotiating, the employer has saved potentially Hundreds of thousands of dollars.
This is one very important reason you shouldn’t discuss a dollar amount with the other side until you have spoken with a lawyer. Make sure the attorney is experienced in the Jones Act and the maritime law and the value of a maritime injury case. This is not a car wreckcase and a car wreck lawyer may not know the “ins and outs” off the top of his/her head. You only have one chance, don’t make a costly mistake that will effect you and your family for the rest of your life.
(7) THINGS TO REMEMBER IN YOUR INJURY CASE:
1. You don’t have to give a statement to your employer;
2. You have a right to see a doctor of your own choice and the right to a second opinion;
3. Your employer does not have the right to have a rehab nurse sitting in with you during private patient visits;
4. You do not have to sign a blank medical release to allow open discussions with your doctor;
5. They can not fire you if you choose to consult with an attorney;
6. Do not get trapped into settlement discussions and start bidding against yourself and
7. If you are seriously injured, talk to a lawyer before you say or do anything that might damage your case.
MAINTENANCE AND CURE
Under the Jones Act & General Maritime Law some basic rights exists for a seaman injured in the course and scope of his or her employment. Maintenance and Cure are both ancient maritime remedies for seamen who are injured while in the service of a ship or vessel and are owed to them under the law.
Often however, the employer may refuse to pay the maintenance or delay the weekly maintenance checks creating financial difficulties and hardship on the injured seaman and his family. This tactic forces many workers to accept a much lower settlement than what their case may have been worth, sometimes while the seaman is still being treated by doctors and a full prognosis of his injury is not even known.!!
If you are a seaman and have been injured on a ship or vessel and your employer is not paying your medical bills, refusing to send you to a medical specialist or not paying you maintenance, then call us for a FREE CONFIDENTIAL CONSULTATION at 866-226-8937 or click here.
1. Cure – you’re entitled to this no matter who was at fault in getting you hurt.The most basic of your rights is the right to medical care. Under the general maritime law (which applies to Jones Act Seamen), the employer is obligated to pay for reasonable medical care related to all medical conditions which manifest while you are in service to the vessel until the time your reach maximum medical cure.
2. Maintenance – you’re also entitled to this no matter who was at fault. In addition to cure, you are entitled to receive “maintenance” during the time you are under medical care (before you reach maximum medical cure). The amount of maintanance is generally between $15-$30 dollars per day. The rule is that the employer must pay you what it would cost for you to live on land in the same manner you lived offshore on the vessel.
If however you were injured due to the negligence of your employer, the ship or vessel owners or other Jones Act or Maritime defendant, then you may have a right to file a separate Jones Act lawsuit or cause of action to recover potentially $ 100,000′s and much more. There have been thousands of maritime workers who didn’t hire a lawyer and just accepted the 15-30 dollars a day and never collected a red penny of their potential Jones Act cause of action. The employer many times will be your best friend and promise you the moon, until after the Statute of Limitations expires and then they are out of harms way. Remember there are Statute of Limitations that apply in every case. If you wait to long then you wave the right to ever collect.
3. Settlement or Lawsuit under the Jones Act – In order to maintain a Jones Act claim or lawsuit, you have to prove fault on the employer. In addition to maintenance and cure, your employer may owe you damages for the things you have lost because of your injuries. To recover you must prove fault on the fault of the employer or unseaworthiness of the vessel. If you can prove liability, you are entitled to recover damages designed to make you whole under the law. These Jones Act damages include the seaman’s right to recover past and future loss wages or economic damages, pain & suffering, mental anguish, disfigurement and medical expenses.
4.Third (3rd) Party Lawsuit against Negligent Contractors, Suppliers and Other Legal Entities- there are many situations in which other parties may have been negligent in causing your injuries other than your employer’s own negligence or the unseaworthiness of the vessel. In those situations a separate 3rd party lawsuit may be filed. This may be filed with the Jones Act cause of action or independent of it.