When Should I Consider a Claim for a Maritime Injury?
Passengers, visitors and invitees aboard vessels have a cause of action against a negligent vessel operator for their injuries under federal general maritime law. However, a seaman has no action against his employer under the general maritime law for the negligence of his employer.
When a seaman is injured on a vessel owned by his employer, another federal law, the Jones Act, provides that seaman with the legal ability to file suit against his employer for those injuries. This is one of the few instances in which a lawsuit, as opposed to a worker’s compensation action, is allowed against an employer by an employee.
However, in order to sue under the Jones act, an injured victim must prove that he was a seaman. This is an issue that is often litigated by the parties. Case law interpreting the Jones Act provides guidelines for courts to consider in answering the question as to whether the injured person will be considered a seaman for purposes of the Jones Act.
In order to be considered a seaman the vessel must be in navigation, the worker must have a more or less permanent connection with the vessel and the worker must be aboard primarily to aid in the navigation or contribute to the mission of the vessel. Crewmen are generally considered seamen for purposes of the Jones Act.
Some injuries occur on crew boats, jackup vessels, drilling platforms and barges which are located on water. However, just because the accident occurred on water does not mean that the case will fall under the Jones Act. Congress has provided for other remedies under other federal statutes including the Longshore Harbor Workers Compensation Act for some of these injuries..
In addition to the Jones Act, the vessel and its operator owe to a seaman (but not a passenger, longshore or harbor worker or visitor) the duty to provide a seaworthy vessel. If a seaman’s death or injury was caused by the unseaworthiness of the vessel, the seaman can recover loss of income, medical expenses, pain and suffering, and compensation for disability.
In considering whether to bring a claim for maritime personal injuries which occurred on a vessel, the question of whether the injured person was a passenger, guest or employee must be answered first. If the victim is an employee of the vessel operator, was he a seaman at the time of the accident? If he was a seaman several other factors should be taken into account before proceeding further.
Was the accident which occurred on the vessel witnessed? Was an accident report filled out by the captain or injured person? Were the other crew members or captain aware of the condition which caused the injury? Had other people been injured previously by the condition? Was the negligence of a fellow crew member involved? Did the captain offer or provide timely medical assistance to the injured seaman? Will the crew members testify in support of the injured seaman’s claim? The answers to all of these questions will help determine the likelihood of proving a case of Jones Act negligence against the employer.
One of the primary factors which determines the amount of damages to be awarded to an injured seaman is his lost wage claim. Seamen are generally compensated higher many types of professions. The ability to prove this wage loss depends on income tax returns, pay check stubs and employer’s records. An injured seaman who cannot return to work on a vessel because of his injuries is entitled to recover for the wage earning ability he had before the injury. This is true even if he can return to work at another job making less money.
Finally, the nature and extent of the injuries suffered by the seaman are important considerations in deciding to bring a claim for maritime personal injuries. In this area, many seamen suffer back and neck injuries from slipping, tripping, lifting or other accidents. If a victim had previous degenerative back problems, the defense will argue that any negligence on their part did not cause the injuries suffered by the seaman. Back and neck surgeries can be very disabling and usually prevent the seaman from returning to work on the vessel thereby increasing his lost wage claim.
If the injuries are minor and do not prevent the seaman from returning to work on the vessel, the victim may want to forgo a claim and continue his employment with the company.
If you have suffered a maritime personal injury, you should consult an attorney experienced in handling these types of claims.