Archive for February, 2011

In maritime lawsuits, shipowners have numerous legal defenses that they can use against seamen and maritime workers. One of the main defenses is comparative negligence. This defense decreases a seaman’s recovery by the percentage that he is found to be at fault for causing his own injury. There is a similar defense that can be used in maritime lawsuits when a ship’s officer brings a claim against a shipowner or employer. This defense is called the primary duty rule and it basically states that an employee who is responsible for maintaining safe conditions on a ship may not sue his employer for his own failure to maintain safe conditions.

Unlike the comparative negligence defense that is commonly used in maritime lawsuits, and merely decreases the amount that a seaman can recover in an injury or wrongful death claim, the primary duty rule bars recovery in maritime lawsuits altogether. However, in order for this defense to be successful, the defendant must offer evidence that the plaintiff consciously undertook a duty to maintain safe conditions aboard a vessel and that the plaintiff knowingly violated his duty. If the defendant-employer fails to prove each of the elements of this defense, the primary duty rule will not apply.

An example of this rule existed in the case of Malefant v. Beatty St. Props., Inc., 328 F.Supp.2d 668 (S.D.Tex.2004) where a plaintiff slipped because of missing nonskid tape that he had a duty to insure was in place. If the plaintiff’s injury was not caused by a specific condition that he had a duty to protect against, the defense may not be used by an employer or shipowner in maritime lawsuits.

The courts have established, with regards to Jones Act lawsuits, that an injured seaman may not be denied recovery because he or she assumed a risk that resulted in his or her injury. Assumption of the risk is a legal defense that maritime employers have historically attempted to use in Jones Act lawsuits. This doctrine essentially implies that a defendant cannot be held liable for actions that a plaintiff takes if he or she knows that they are dangerous or could potentially cause an injury. Maritime employers have also attempted to defend Jones Act lawsuits by showing that a seaman’s seafarer agreement contained an assumption of the risk clause before joining the ship’s crew.

The courts have recognized that the job duties involved in working as a seaman on a vessel are generally dangerous by their very nature. Therefore, preventing a seaman from recovering for an injury that occurred in the general course of his employment would be unjust. The courts have contrasted the doctrine of assuming a risk with the valid legal defense of comparative negligence, which allows for a reduction in the amount that an injured seaman may recover in Jones Act lawsuits if he is partially at fault for his injury.

To demonstrate this point we can look to the case of Tolar v. Kinsman Marine Transit Co., 618 F.2d 1193 (6th Cir. 1980), where a seaman was injured while he was assisting other crewmembers in hoisting groceries onto his vessel even though this task fell outside of his general duties. The maritime employer in this case argued that the seaman “assumed the risk” of injury when he made the decision to assist his fellow crewmembers.

The court found that the fact that a seaman understands that a job duty or action could potentially result in an injury is not a valid defense to Jones Act lawsuits. However, if a safer procedure or piece of equipment was available and the seaman made the conscious decision not to use it, then his actions could rise to the level of negligence, which may reduce any recovery that he is entitled to receive.

The Jones Act law was enacted by Congress to protect seaman and other maritime workers who became injured while performing their work duties. The Jones Act provides for compensation benefits in the form of maintenance and cure payments as well as other purely financial losses. In some cases, a seaman may recover punitive damages, which are considered “non-pecuniary” damages, if their maritime employer refuses to provide benefits when a seaman is entitled to them.

As a general matter, non-pecuniary damages are amounts that are paid for non-financial losses such as pain and suffering, loss of society, or punitive damages. Under the Jones Act law maritime workers or their representatives are not entitled to non-pecuniary damages with the exception of punitive damages for an employer’s willful failure to pay benefits.

The inability to recover non-pecuniary damages went one step further in the case of Scarborough v. Clemco Industries, 391 F.3d 660 (5th Cir. 2004) when the court decided that non-pecuniary damages could not be recovered from a third party non-employer as well as the seaman’s employer. The reverberations of the Jones Act law expand to both injured seaman and survivors in the case of a deceased maritime worker.


The Death on the High Seas Act allows certain relatives of a deceased individual to recover for pecuniary losses. Pecuniary losses are financial losses such as earnings, medical bills and funeral expenses that the family has suffered as a result of the death of a family member. This offshore law provides in part that:

Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative. The recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought.”

Family members or personal representatives of the deceased relative may not sue for non-pecuniary losses such as the pre-death pain and suffering of the deceased or loss of society. This point was discussed at length in Dooley v. Korean Air Lines Co., 524 U.S. 116 (1998) where a Korean Air Lines flight en route from Alaska to South Korea strayed into the airspace of the former Soviet Union and was shot down over the Sea of Japan. Each of the passengers aboard the flight were killed. Due to the location of the crash, the court determined that the remedies provided under the Death on the High Seas Act were the exclusive remedies in this case.

In cases where a death is caused in waters adjoining a particular state, that state’s offshore law may be applied. In many cases, a state’s offshore law may provide for the recovery of certain non-pecuniary losses. If one of your family members has been involved in a maritime accident that resulted in death, it is important that you contact an attorney who is experienced in offshore law. The facts of your case will determine which offshore law will apply and which remedies you are eligible to receive.


Traditionally, when we think about maritime negligence claims the stereotypical employee injury situation comes to mind where the employer or shipowner is liable under the Jones Act law. What we do not typically consider are the situations where an employee may be held liable to the employer for negligence. Under the Jones Act, an employer cannot recover from an employee for an injury that was obtained by a co-worker, even if the employee’s negligence caused the injury. However, recent developments in the courts’ treatment of the Jones Act law suggest that an employer may be able recover for property damage that was caused by an employee’s negligence.

This type of scenario occurred in the case of Withhart v. Otto Candies, LLC, 431 F.3d 840 (5th Cir.2005). In that case, a seaman who was employed as mate aboard a ship was supposed to be on watch and in command of the vessel. However, the seaman left the wheelhouse of the vessel in congested waters to attend to personal business. While the seaman was absent, the vessel collided with another ship causing damage to both vessels. The shipowner brought a lawsuit against the seaman on the grounds that the seaman’s negligence caused the collision and the subsequent property damage to the vessel. The seaman argued that the shipowner was barred from bringing a lawsuit against an employee under the Jones Act law.

The court in this case found that the Jones Act law did not prevent shipowners from bringing a negligence claim against an employee who is at fault for causing property damage. The court recognized that the intended purpose of the Jones Act law was to “benefit and protect seamen by expanding the legal remedies that are available to them.” However, the court also stated, “permitting a shipowner-employer to sue its seaman-employee for property damage arising out of the seaman-employee’s negligence will not narrow the remedies available to seamen-employees under the Jones Act law.”


Under the principles of general maritime law, an employer or shipowner may sue an employee-seaman for property damage that was caused as a result of the seaman’s negligence. However, a maritime employer cannot recover from an employee who negligently causes an injury to someone else.

Under the Jones Act, a maritime employer or ship owner is required to pay maintenance and cure benefits to a seaman who becomes injured while working on the employer’s ship. Many maritime injuries occur as a result of a ship that is unseaworthy, equipment that is not properly maintained or human error that results from the actions of other seamen.

In the past, employers have attempted to recover from a negligent employee who has caused an injury to another seamen through the principles of indemnity and contribution under the general maritime law. Essentially, indemnity and contribution means that a third party will pay the defendant in a lawsuit for any amount that he was required to pay to the plaintiff. This right of recovery is recognized under maritime law.

However, in the case of California Home Brands v. Ferreira, 871 F.2d 830 (9th Cir.1989), the court decided that the Jones Act created a negligence cause of action only against the employer. It did not provide the seaman with a right of action against a fellow employee for negligence. If an employee was not permitted to sue a fellow employee for his injury, then the employer was similarly not entitled to sue the negligent employee for the same injury.

While the employer may have had a cause of action under general maritime law for injuries caused by a non-employee, the fact that the injuries here were covered under the Jones Act precluded the employer from being indemnified by the negligent employee.


In 1851, Congress enacted the Limitation of Liability Act in an effort to provide American ship owners with benefits equal to those of their foreign competitors. The Act allowed vessel owners to restrict their exposure to liability for injuries and other tort actions to the value of the vessel and the freight that it was carrying. Paradise Divers, Inc. v. Upmal, 402 F.3d 1087 (11th Cir. 2005). Essentially, if you were to sustain a Jones Act injury worth $1 million dollars, but the total value of the ship that you were working on was worth $200,000, your claim could be limited to $200,000.

Florida Jones Act lawyers recognized that this law placed seaman and other maritime workers at a distinct disadvantage since it allowed ship owners to pay less than what an injury claim was actually worth. In 1936 Congress amended the Limitation of Liability Act by placing a six-month time limit on the use of the liability limitation defense. Under the amendment, a ship owner is now required to file a petition in federal court within six months of receiving written notice of a claim.

The “written notice” requirement that a claimant must file in order to start the six-month time period for the limitation of liability defense has been the subject of litigation by numerous Florida Jones Act lawyers. Essentially, the courts have defined sufficient notice as a written document that (1) demands a right or supposed right; (2) blames the vessel owner for any damage or loss; and (3) calls upon the vessel owner for anything due to the claimant. Rodriguez Moreria v. Lemay, 659 F.Supp.89 (1987).

If you have sustained a maritime injury you should contact the Florida Jones Act lawyers in your area immediately to have your claim assessed. Florida Jones Act lawyers can ensure that your maritime employer receives proper legal notice of your injury. Once proper notice is provided by Florida Jones Act lawyers, the six-month period for your employer to file a limitation of liability defense will begin. If your employer fails to raise this defense in a timely manner, Florida Jones Act lawyers can make sure that your employer is not permitted to use this defense if they attempt to do so later on in the case.


As a general matter, maritime workers and seamen have 3 years to file a claim for an injury. This three-year limitations period applies to cases invoking both the Jones Act and general maritime or offshore law. However, questions have arisen regarding when the three-year time period begins to run. Logically, you might think that this time period would begin on the date of the injury. This is true in most cases. However, the courts have also recognized a legal theory called the “discovery rule” which can cause the three-year time limit for filing a claim to begin running after the injury occurred.

The court that decided the case of Crisman v. Odeco, Inc., 932 F.2d 413 (5th Cir.1991) held that a cause of action under the Jones Act and general maritime or offshore law “accrues when a plaintiff has had a reasonable opportunity to discover the injury, its cause, and the link between the two.” To illustrate the court’s holding we can look at the facts of Urie v. Thompson, 337 U.S. 163 (1949). In this offshore law case a worker had inhaled silica dust over the course of thirty years but did not become aware of his injury until his symptoms became so severe that he was unable to work. The worker was later diagnosed with silicosis. In this case, the three-year limitations period did not begin to run until the worker learned of his injury.

The main point that is illustrated by the discovery rule is that work related injuries are not always obvious or caused by one single event. It is common for injuries and illnesses to develop over a period of years or even decades. If you have developed an injury or illness that you suspect might be related to your job as a maritime worker, you should contact an attorney who is experienced in the area of offshore law. Your maritime employer may attempt to discount your claim if it occurred more than three years ago. However, your claim may be covered by the discovery rule that is recognized under the offshore law. An experienced and knowledgeable lawyer can assess your claim and advise you of your rights under the offshore law.

The U.S. Congress has enacted numerous maritime compensation statutes for the purpose of protecting maritime employees, seamen and longshoremen. However, maritime workers are not the only individuals who sustain boat and shipping injuries. Ordinary passengers commonly receive injuries on cruise ships, common carriers and other privately owned boats and yachts. While these passengers are not protected by specific statutory provisions, such as the Jones Act, they are entitled to bring an injury claim under the general principles of maritime law.

Under the general principles of maritime law, a boat owner owes a duty of reasonable care to passengers lawfully aboard his or her boat who are not members of the crew. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959). This is the same duty of care that is owed to a licensee under the common law. To illustrate this principle, we can look to the recent case of Doyle v. Graske, 579 F.3d 898 (2009), in which the plaintiff was injured while he was a passenger on the defendant’s recreational watercraft. In that case, the court found that the defendant was negligent for failing to properly maintain his boat. As a result, the court awarded $3.2 million dollars in compensatory damages to the plaintiff.

If you or someone that you know has been injured in a boating accident, you should consult with an experienced Jones Act attorney who has extensive experience with cases involving maritime law issues. Maritime law cases can be quite complex due to the numerous jurisdictional and substantive legal issues that are involved in litigating these types of cases.


The Jones Act law is a federal statute that permits a seaman to sue his employer for personal injuries that occur as a result of the employer’s negligence. However, in order to be considered a seaman under the Jones Act law, you must be an employee whose duties “contribute to the function of a vessel or to the accomplishment of its mission” and have a “connection to a vessel in navigation that is substantial in terms of both its duration and its nature.” Chandris, Inc v. Latsis, 515 U.S. 347 (1995). Basically, in order to be considered a seaman under the Jones Act law, you must be employed on an eligible vessel.

The courts have heard numerous cases on the subject of what is considered an eligible vessel for Jones Act purposes; however, an interesting question recently arose regarding whether a ship that is under-construction qualifies as a “vessel” for purposes of the Jones Act. As a general rule, Jones Act vessels are required to be “in navigation.”

The 5th Circuit Court of Appeals recently held in Cain v. Transocean Offshore USA, Inc., 518 F.3d 295 (2008), that “a maritime worker assisting in the building and ultimate commissioning of a launched, but incomplete vessel floating or maneuvering in navigable waters, is not a seaman within the meaning of the Jones Act because his vessel is not yet an instrument of commerce–private or public–and is therefore not in navigation.

Therefore, workers who are injured while working on a ship that is under-construction may not be eligible to benefit from the protections that are provided by the Jones Act law. However, these workers may be eligible for other compensation remedies under state and federal law.