Archive for February, 2011

Maintenance and cure are remedies to maritime claims that are provided for pursuant to principles of general maritime law. Maritime claims for maintenance and cure are considered to be separate and independent from alternative claims for negligence under the Jones Act or unseaworthiness under general maritime law. However, maritime claims for maintenance and cure can be brought at the same time as Jones Act and unseaworthiness claims.

There are three fundamental elements to maintenance and cure remedies: subsistence, medical care and unearned wages. The subsistence element entitles injured seamen to receive money to cover food and lodging expenses. The medical care element requires a maritime employer to pay for all hospitalization costs including doctor and nursing fees, rehabilitation expenses, medications and other miscellaneous medical costs that are associated with the seaman’s injury. The unearned wages element of maintenance and cure requires the maritime employer to pay an ill or injured seaman’s wages until the end of a particular voyage or until the seaman’s articles of employment are terminated.

Employers who fail to pay maintenance and cure to a seaman who was injured while performing his or her job duties may be required to pay punitive damages and attorney’s fees to the employee in addition to amounts that are owned for maintenance and cure. If you have been injured in a maritime work accident you should contact an attorney who is experienced in handling maritime claims to learn about your right to compensation under the law.

 

The Jones Act is a federal law that allows workers who are classified as “seaman” to recover damages if they are injured while working on a vessel. As a general rule, Jones Act claims can only be brought by a seaman against his or her maritime employer. However, the courts have ruled that an employer does not need to own or operate the vessel on which his or her employee serves in order to be held liable for a seaman’s injury. Guidry v. South Louisiana Contractors, 614 F.2d 447 (5th Cir. 1980).

Seamen who are injured as a result of the negligent acts of a co-worker are not entitled to bring a Jones Act claim against the co-worker. Maritime workers and seaman are generally considered to be agents of their employer. Therefore, in cases were one seaman injures another, the responsible party for Jones Act claims is still the maritime employer, unless criminal acts are involved.

Seamen may be able to bring additional claims, aside from Jones Act claims, against parties who are not their employer. For example, if two vessels collide in navigable waters and the collision causes injuries to a seaman or maritime worker, the seaman may be able to bring a claim under principles of general maritime law against each of the vessels involved in the collision in addition to the claims that he may have against his employer.

 

BP has donated $100 million to assist deepwater rig workers who were affected by the 2010 federal moratorium in the Gulf. The Gulf Coast Restoration and Protection Foundation will be administering a second round of grants for maritime workers who directly supported the deepwater rigs that were affected by the moratorium after the 2010 oil leak in the Gulf of Mexico.

The application period for these maritime claims will be open from March 15, 2011 through May 13, 2011. According to the Gulf Coast Restoration & Protection Foundation, “only individuals who were predominantly engaged on May 6, 2010 in direct support of any deepwater drilling rig subject to the U.S. government moratorium may qualify for grants in Round 2.” Each grant is expected to range from $3,000 to $30,000 depending upon the unique factors affecting each applicant.

Applications can be obtained on the Gulf Coast Restoration and Protection Foundation website. Applicants can also call a toll free hotline at: 866-577-8141 for additional information or to obtain a paper application packet. Maritime workers who are interested in applying for this grant should start gathering pay stubs, income tax returns for 2009 and 2010 and other financial data as this information may be required to complete the application. If you require legal assistance for maritime claims or have any questions regarding a potential claim, you should contact a law firm with extensive experience in Jones Act injury cases and other maritime claims for immediate assistance.

Most Jones Act claims are premised on the existence of one or more negligent acts on the part of a maritime employer that caused an injury to a seaman. However, the U.S. Supreme Court has ruled that Jones Act claims may also be based upon the violation of a safety statute. These types of cases invoke a legal principle called “negligence per se.” These types of cases are generally easier to prove since the seaman only needs to show that a safety statue was violated and that his injury was a direct result of the violation. In traditional “negligence” Jones Act claims, the seaman must prove a series of elements such as duty, breach and causation.

In the case of Kernan v. American Dredging Co., 355 US 426 (1958), a seaman lost his life when the tugboat that he was working on caught fire. The fire started when an open-flame kerosene lamp on the deck of the vessel ignited highly flammable vapors that were lying above an accumulation of petroleum products that were spread over the surface of the water. At that time, maintaining a lamp at a height of less than eight feet violated a navigation rule set forth by the Commandant of the United States Coast Guard. The lamp on the tugboat was hung only three feet from the surface of the water, thereby violating the statute.

The defendant in this case argued that the initial purpose or intention of the Coast Guard statute was not designed to protect against ship fires. The court disregarded this argument and found that a “violation of a statute by a Jones Act employer constitutes negligence per se if the violation contributes to the injury, even though the statute was not designed to prevent a specific harm to a seaman.” However, certain laws and statutes have failed to give rise to per se negligence Jones Act claims in subsequent case law.

 

In some cases, it is not always clear who the “employer” in a Jones Act case is. This is especially true where contractors or sub-contractors work on a vessel that is rented out for a particular job by a company that is different from the one that hired you. Galveston Jones Act lawyers have litigated a number of these types of cases in recent years. Galveston Jones Act lawyers have recognized that a unique problem is presented in these types of cases where more than one potential “employer” is involved.

This type of scenario has been termed the “borrowed employee doctrine” by the courts and Galveston Jones Act lawyers. This doctrine was discussed at length in Guidry v. South Louisiana Contractors, Inc., 614 F.2d 447 (5th Cir. 1980). In that case, Guidry was employed by South Louisiana Contractors. This company owned a number of vessels that it regularly rented out to other companies. In this case, the company had rented out a vessel to Messina Contractors for a specific period of time for the purpose of completing a job. The deal between the two companies required Messina to use South Louisiana’s crew because they were familiar with the way that the vessel worked. Guidry was injured while working for Messina Contractors and filed a Jones Act claim to receive compensation for his injury.

Guidry originally filed his Jones Act lawsuit against both South Louisiana Contractors and Messina Contractors. Messina settled their case by offering Guidry $75,000 for his injury. Therefore, the only question that was left for the court to answer was whether South Louisiana Contactors could be considered Guidry’s “employer” for purposes of the Jones Act even if they were not in control of the operation of the vessel at the time of the injury.

The court held that it was not necessary for the employer to be either the owner or the operator of the vessel and that it was possible for independent contractors to be held liable under the Jones Act. The court also stated that, “a third person who borrows a worker may become his employer if the borrowing employer assumes enough control over the worker. However, even if a seaman is deemed to be a borrowed employee of one employer, this does not automatically mean that he ceases to be his immediate employer’s servant for Jones Act purposes.”

If you are a contract or maritime worker in the Galveston area who has been injured in a work-related accident you might be wondering if this scenario applies to your case. The easiest way to get answers is by contacting the local Galveston Jones Act lawyers in your area. Galveston Jones Act lawyers will be able to assess your case and determine who may be liable for your injuries. Galveston Jones Act lawyers can also inform you of your rights under the law and defend your case in court.

 

There are three major offshore claims for remedies that an injured seaman can bring against his employer and the vessel that he works upon. These remedies include maintenance and cure, the warranty of seaworthiness and a negligence action through the Jones Act. However, the first hurdle that a maritime employee must pass before he is eligible to bring one or more of the aforementioned offshore claims is to obtain “seaman status”.

The courts have defined “seaman status” as “an employment-related connection to a vessel in navigation.” Essentially, “seaman status” requires a maritime worker to “contribute to the mission or work of a vessel and have a connection to that vessel which is substantial in duration and nature.” Mahramas v. American Export Isbrandtsen Lines, Inc., 475 F.2d 165 (2nd Cir. 1973).

The second hurdle that a maritime worker must clear is that the legal status of his ship must be defined as a “vessel”. In order for a ship or watercraft to be considered a “vessel” for purposes of the aforementioned offshore claims, it must be operating on navigable waters. Stanfield v. Shellmaker, Inc., 869 F.2d 521 (9th Cir. 1989). A seaman or maritime worker is not covered by the offshore claims mentioned here if he performs work on a fixed platform or on a vessel that is under construction.

Once a seaman passes the two qualifying hurdles of “seaman” and “vessel” status, he may bring offshore claims for maintenance and cure, unseaworthiness and negligence under the Jones Act. Maintenance and cure benefits are limited to medical expenses, wages to the end of the voyage and living expenses during the seaman’s treatment.

The operator of a vessel owes a “duty of seaworthiness” to the seamen who work on the ship. If the vessel is defective or not reasonably fit for its intended use, a seaman may bring a claim against the vessel owner for unseaworthiness if the defective condition caused his injury.

Under the Jones Act, a maritime employer may be held liable if a seaman is injured because of the employer’s negligence. All three of these offshore claims may be used against a maritime employer at the same time if facts exist to support each of the claims individually.

 

Generally, when a seaman is injured while working aboard a vessel, there are two main types of maritime claims that he may bring against his employer: (1) Jones Act claims for employer negligence, and (2) general maritime claims for unseaworthiness of a vessel. At first glance, it may seem difficult to distinguish between these two types of claims. Many people might think that if a ship is unsafe, the owner of the vessel must have been negligent. However, some Jones Act and maritime claims will not prevail under that argument because it does not take into account the legal distinctions that exist between the two claims under the law.

Maritime claims for negligence that arise under the Jones Act require the plaintiff-seaman to show that the maritime employer failed to use due care or act in a manner that is reasonable under the circumstances, whereas a plaintiff only needs to show that a ship was not seaworthy in order to prove unseaworthiness claims under general maritime law. In effect, Jones Act claims require a slightly higher burden of proof.

For example, a ship owner who failed to inspect his vessel prior to going out to sea could be found negligent if a seaman is injured by a condition that may have been discovered if an inspection was conducted properly before the ship went out to sea. However, if the shipowner conducted a reasonable inspection of the vessel but it was later discovered that the ship had a latent defect that made it unseaworthy, the employer would not be found negligent and a seaman would therefore not have a claim under the Jones Act.

This example may be contrasted with a scenario in which a seaman who was injured due to the unseaworthy condition of a ship may have maritime claims for unseaworthiness under the general maritime law without the need to prove that the shipowner acted in a negligent manner. This distinction was the subject of Mitchell v. Trawler Racer, Inc. 362 US 539 (1960), a personal injury case that was argued before the U.S. Supreme Court in 1960.

 

In a recent Jones Act case, Bonin v. Ryan Marine Services, Inc. No. 10-40784 (5th Cir. 2011), a maritime employer was found to be negligent by the court after instructing a seaman to detach and retrieve a mooring line. Lavern Bonin was a seaman working for Ryan Marine when his supervisor ordered him and another deckhand to go to the anchor platform and detach the vessel from a work platform on shore. They were instructed to do this by disconnecting and retrieving the mooring line. Bonin suffered a shoulder injury while attempting to follow his supervisor’s instructions.

Bonin subsequently filed a Jones Act claim in an attempt to recover for his maritime injury. The court found in favor of Bonin’s Jones Act claim and awarded him compensation for his economic losses, which included past and future wages. Ryan Marine Services appealed the Jones Act claim to the U.S. Court of Appeals for the 5th Circuit arguing that they should not have been found to be negligent in a Jones Act claim merely because they instructed a seaman to perform a job-related duty.

The Court of Appeals affirmed the decision of the lower court and again found the case in favor of Bonin, the seaman. The court pointed to several points in affirming their decision. First, the court found that mooring line was too heavy to be moved by only two seamen. Second, the ship’s supervisor sent Bonin out to retrieve the mooring line at night with decreased visibility and in rough waters. Finally, the court found that the vessel was not equipped with adequate safety measures, which may have prevented the seaman’s injury.

Under the Jones Act, maritime employers are required to compensate seamen who are injured due to the employer’s negligence. In this case, Ryan Marine Services was found to be negligent for instructing a seaman to carry out a task that he was not realistically capable of completing under hazardous conditions. If you have sustained an injury while working on a vessel, you may be eligible to file a Jones Act claim against your employer. Contacting an experienced maritime lawyer is the best way to determine your right to compensation under the law.

Most employment arrangements throughout the United States are classified as “at-will” positions. The term “at-will” essentially means that either the employer or the employee can terminate the employment relationship without consequence for any lawful reason. In most cases, neither the employee nor the employer, are even required to state a reason for ending an employment relationship. There are, however, several employment termination scenarios that may give rise to a cause of action for offshore lawsuits.

Maritime employees have filed successful offshore lawsuits in situations where their employment was terminated as a retaliatory punishment after the maritime worker filed a personal injury claim against the employer. In the case of Smith v. Atlas Off-shore Boat Service, Inc., 653 F.2d 1057 (1981), Smith, a seaman employed by the defendant, Atlas, suffered an ankle injury while working aboard the defendant’s ship. Smith took a leave of absence from his job to seek medical attention. During his leave, Smith also filed a Jones Act claim against his employer. At the end of his leave of absence period, Smith’s employer informed him that, unless he abandoned his personal injury claim, he would not be permitted to return to work. Smith was terminated when he refused to drop the claim.

The court in this case held that “seamen who have their at-will employment positions terminated because they filed offshore lawsuits against their employers under the Jones Act have an action in admiralty for wrongful discharge.” The court further reasoned that, “an employer should not be permitted to use his absolute discharge right to retaliate against seamen for seeking to recover what is due to them or to intimidate seamen from seeking legal redress by filing offshore lawsuits.” If you believe that you have been wrongfully terminated from your maritime job, you should contact an experienced maritime lawyer who can assess your case and advise you of your rights under the law.

Tennessee Jones Act lawyers understand that the Jones Act is well known for protecting seaman who are injured in the course of their maritime employment by providing them with maintenance and cure benefits. It is likely that the majority of cases that are handled by Tennessee Jones Act lawyers are of this variety. However, in some cases, a maritime accident can be so severe that it causes the death of a maritime worker. In these cases, Tennessee Jones Act lawyers are aware of the fact that the Jones Act allows the family of the deceased seaman to pursue a survival claim on the seaman’s behalf. Bowoto v. Chevron Corp., 621 F.3d 1116 (9th Cir. 2010).

Tennessee Jones Act lawyers are familiar with the large body of case law that surrounds wrongful maritime death actions. For example, a wrongful death claim that is brought under the Jones Act may only be filed against an employer for negligence. The Jones Act does not provide a remedy against defendants who are not maritime employers. Additionally, permissible plaintiffs under the Jones Act include “the surviving widow or husband and children of the employee; and if none, the employee’s parents or next of kin who are dependent upon the maritime employee.” Evich v. Connelly, 759 F.2d 1432 (9th Cir.1985)

To demonstrate the extent of the class of plaintiffs that are permitted in wrongful death cases under the Jones Act, we can look to the case of Evich v. Connelly. In that case the court determined that the non-dependent siblings of a deceased seaman were not eligible to recover for his death under the Jones Act. The fact that the plaintiffs in this case were not legal dependents of the seaman does not mean that they may not be able to bring a claim under a different statute or other principles of maritime law. Experienced Tennessee Jones Act lawyers can evaluate the facts surrounding an incident to determine if a claim exists under the Jones Act or another maritime statute.