Our firm routinely receives calls from injured seamen who want some general information about maintenance and cure and obligations shipowners have to protect a seaman from injury (e.g. warranties). Below is information regarding some of the common questions we receive along with our general response. Note that every case is different and the answers to the questions below may not apply to your specific situation. If you would like to discuss these concepts and how they may relate to a claim that you have, please call us directly. We would be happy to discuss these concepts with you and apply them to your specific situation. You can reach our firm toll-free at 866-369-5385 or by completing our contact form.
What is the Jones Act?
The Jones Act, originally passed in 1920, provides:
“A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.”
See 46 U.S.C. § 30104 (2006).
The “statute . . . modifying … the common law right… in cases of personal injury to railway employees” was the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq., which provides that: “Every common carrier . . . shall be liable in damages to any person suffering injury while he is employed by such carrier . . . resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier… 45 U.S.C. § 51.
Accordingly, Jones Act seamen have the same right to sue their employers for personal injuries as railway workers have under the FELA. See Jacob v. New York, 315 U.S. 752, 754 (1942). Likewise, the duties and responsibilities of a Jones Act employer are found within the FELA. See 45 U.S.C. §§ 51-60.
I am a Seaman—Can You Explain Maintenance and Cure to Me?
Maintenance and Cure (Generally)
Generally speaking, the Jones Act provides recovery for an employer’s failure to furnish maintenance and cure to a Jones Act seaman for personal injuries. The duty to pay maintenance and cure arises from a contractual relationship between the Jones Act seaman and his employer. An employer is liable to an injured seaman for maintenance and cure regardless of whether the employer was at fault and here are few defenses for failing to pay an injured Jones Act seaman maintenance and cure.
Maintenance is a contractual form of compensation given that is provided to injured seamen under general maritime law and the Jones Act. Maintenance is comprised of (a) the wages the seaman would have earned until the end of the voyage and (b) the amount of money it would cost the shipowner to provide the injured seaman subsistence, lodging, and care to the point where they reach maximum medical improvement. A seaman reaches maximum medical improvement when it is probable that further treatment will cause the seaman to become better. Maintenance is a per diem living allowance paid to the injured seaman as long as he is out of the hospital but has not reached maximum medical improvement.
“Cure” is the requirement that the employer pays a seaman’s medical expenses. Just like maintenance, an employer has a duty to pay cure to an injured seaman because of the contractual relationship between the seaman and his employer. The duty to pay cure terminates only when the seaman has reached maximum medical improvement. Ambiguities as to whether or not maximum medical improvement has been reached are to be resolved in favor of the injured seaman. Therefore, it is crucial that employers only rely on medical advice from doctors, rather than on the advice of counsel, when determining when an injured seaman has reached maximum medical improvement. It is the employer’s burden to establish that maintenance and cure benefits are no longer due. See Lirette v. K & B Boat Rentals, Inc., 579 F.2d 968 (5th Cir. 1978).
What is the Warranty of Seaworthiness?
A vessel owner must provide seamen with a “seaworthy” vessel on which to work. A vessel owner has a nondelegable duty to provide a ship that is reasonably fit for its intended use. A seaman does not need to show that a shipowner was negligent to recover under a claim of unseaworthiness because liability under the warranty of seaworthiness is not based on fault, negligence, or blame. Unlike other areas of personal injury law where injured people have to show property owners had knowledge of a deficiency, the same is not true for shipowners. It does not matter whether a shipowner knows or could have known of the deficiency in the vessel prior to the seaman’s injury for liability to attach.
Temporary conditions, even those that may exist only a few moments, may constitute unseaworthiness. The following conditions or practices have been found to constitute a breach of the ship owner’s duty to provide a seaworthy vessel:
(a) Insufficient crew. It is well established that one creates an unseaworthy vessel by utilizing an understaffed, or untrained, or undertrained crew. The vessel operator, therefore, has a nondelegable responsibility to assure that vessel is not undermanned and incompetently crewed. Notably, a vessel may be unseaworthy even though it has a numerically adequate crew, if too few persons are assigned to a given task.
(b) Operational negligence. Courts have held that pure negligence may constitute unseaworthiness. For example, if the conduct of a single crew member makes otherwise proper equipment unsafe, creating an unsafe “condition”, the vessel becomes unseaworthy and the owner is liable for injuries caused by that condition.
(c) Improper method of operation. Any improper, unreasonable, or dangerous method operating a vessel may amount to unseaworthiness.
(d) Defective hull, equipment, or appliances. It has been long established that unsafe appliances make the vessel unseaworthy. Moreover, failure of an item of vessel equipment under normal and expected use establishes unseaworthiness.
(e) Improper operations by contractors. Improper operations by a contractor loading, discharging, or repairing the vessel may create an unseaworthy condition.
(f) Slippery decks. Unreasonably slippery decks amount to an unseaworthy condition.
(g) Defective tools. Defective tools and gear render a vessel unseaworthy, to the extent that they are considered appurtenances of the vessel.
(h) Insufficient provisions or supplies, vessel improperly equipped. A vessel may be considered unseaworthy by failing to provide a working toilet for its crew. Johnson v. Offshore Express, Inc., 845 F.2d 1347 (5th Cir. 1988) made it crystal clear that shipowners have a duty to provide adequate equipment so a seaman can perform his duties with reasonable safety.
(i) Negligent orders. A negligent order may render the vessel unseaworthy. Brown v. Cliff’s Drilling Co., 638 F.Supp. 1009, 1013 (E.D.Tex. 1986); See e.g., Mascola v. Pacific Coast Transport Co., 421 F.2d 1281 (2nd Cir. 1970).
(j) Unsafe methods of ingress and/or egress. Failure to furnish reasonably safe means of egress can render a vessel unseaworthy. Hatfield v. Brown & Root, Inc., 245 F.Supp. 733, 735 (E.D. Tex. 1965); see also Romero Reyes v. Marine Enter., Inc., 494 F.2d 866 (1st Cir. 1974).
What Should I Do If I Was Injured Working as A Jones Act Seaman?
If you are a Jones Act seaman who was injured while working offshore, you should contact a lawyer experienced in bringing lawsuits on behalf of an injured seaman. You should refrain from giving any recorded statements to insurance adjusters and risk managers (however, you should notify your employer immediately regarding the fact that you were injured). Also, you should not sign any documents until after you have given them to your lawyer for review and they have given you the ok to sign.
Be wary of anything your employer asks you to do. Place your trust in yourself and your attorney, not in the insurance company, your employer, or the person/company responsible for your injuries.
If you are being pressured to do something before you are given the opportunity to hire an attorney (some claims adjusters and risk managers are known to chase the ambulance or helicopter to the hospital so they can put pressure on the injured seamen and get him or her to sign documents. Almost always, the documents the injured seaman signs limit their rights. For that reason alone, if you find yourself in a similar situation, you should tell the adjuster or risk manager that you wish to contact an attorney for advice before signing or doing anything.
If you or a loved one is an injured seaman, you should contact the Jones Act lawyers at Morrow & Sheppard LLP. We will evaluate your claim and guide you through the litigation process. If you would like to learn and preserve your legal rights, please call us toll-free at 866-369-5385 or by completing our online contact form.