Fury Bailey - Personal Injury - Wrongful Death Attorneys

THE RIGHTS OF INJURED SEAMEN

by

C. Steven Fury

Fury Bailey

1300 Seattle Tower

Seattle . WA 98101

1-800/SEALAW8

Injured seamen are not covered by worker's compensation. Rather they are entitled to benefits under maritime law, a form of federal common law, and the Jones Act. Admiralty Courts of the United States have historically looked upon seamen with favor as "wards of the Admiralty." The general maritime laws protecting seamen come to us from antiquity, dating back to the law of the Isle of Rhodes as early as 900 B.C. and through medieval times and the Admiralty courts of England . The attitude of the courts toward injured seamen generally works to their benefit in court, but has an unwanted side effect. Many injured seamen, most doctors and other health professionals who provide them with care, and even employer's representatives charged with administering seamen's benefits, do not understand their rights.

“Seamen” include all workers regularly employed aboard vessels. A seaman is any employee who is (1) more or less permanently assigned; (2) to a vessel in navigation and (3) whose duties aid in the accomplishment of the vessel's mission. The plaintiff in a leading Supreme Court case was a paint foreman and found by the Court to be a seaman. Fishermen, musicians, or cooks on cruise vessels and fish processors are all commonly determined to be seamen. Certainly, ferry workers, deckhands on tugs and blue water sailors are considered seamen under the law.

An injured seaman's remedies fall primarily into two categories. First, a seaman injured while in service of the vessel is entitled to " maintenance ," " cure ," and " unearned wages ." Second, the seaman is entitled to seek damages from either his or her employer or the owner of the vessel if he or she can establish liability. The liability theories are unseaworthiness of the vessel under the general maritime law or negligence of the employer under the Jones Act.

MAINTENANCE AND CURE

A. Entitlement to Maintenance and Cure

The vessel owner's duty to provide maintenance and cure to a seaman who is injured or falls ill while "in service of the vessel" has been recognized for centuries. The right to maintenance and cure is implicit in the contractual relationship between the seaman and the employer. Payment is due to the injured seaman without regard to negligence or other fault on the part of the employer or vessel owner. There is no requirement that either the injury or illness have a causal relationship with the seaman's employment or that it arise while the seaman is even on the vessel. So long as the seaman is "generally answerable to the call of duty," he is entitled to the payment of maintenance and cure, even if injured off the vessel, including while on shore leave.

The negligence of the seaman is no defense to his or her entitlement to maintenance or cure. Only "willful misconduct," such as gross inebriation, fighting where the plaintiff was the aggressor, or venereal disease can serve as a defense. However, "mere drunkenness" does not bar recovery.

B. Maintenance

The maritime rule of maintenance for injured seamen is based on the medieval Laws of Oleron which provided that any when “mariner” became ill or injured “while in service of the ship, the master ought to set him ashore, to provide lodging and candlelight for him, and also to spare him one of the ship-boys or hire a woman to attend him, and likewise afford him such diet as is usual on the ship.”

The definition of maintenance hasn't changed much. It is a per diem payment intended to provide a seaman with room and board equivalent to that provided aboard the vessel. The rate for payment of maintenance can vary. Given that maintenance may be the only monthly income that an injured seaman is receiving until his or her claim is ultimately settled, making the maritime employer pay it promptly and fairly is usually very important.

If an injured seaman is a member of a union, such as the Inland Boatman's Union , Master Mates and Pilots, or the Marine Engineers Beneficial Association, the rate is often set by contract. Such contracts are enforceable. Even fishermen or fish processors who are not members of a union may have signed a contract for their services on board the vessel. These contracts are not necessarily enforceable against the fisherman if they are unfair.

An injured seaman is entitled to the continuation of his or her wages until the end of the "voyage". The amount of wages due the seaman includes not only regular wages, but also any expected overtime and bonuses. The period for which unearned wages are to be paid is often a major issue. For sailors on oceangoing vessels who sign "articles," the end of the voyage is obvious. However, for ferry workers, tugboat deckhands and fishermen, it may not be as clear. Tugboat crewmembers, ferry workers and others on "coast wise" voyages commonly will be paid wages through the end of the pay period. Generally, fishermen receive unearned wages until the end of the fishing season, or the end of the specific period for which they have been employed.

If the seaman recovers before the end of the voyage or end of agreed period of employment, he is entitled to his wages until he reasonably can return to work.

Cure means medical care. Under this rule, the employer of a seaman injured while in service of the vessel must furnish and pay for medical care for the injury. The seaman is entitled to go to the physician of his or her own choosing and not required to see a physician chosen by the employer.

The employer is only required to pay for "curative" medical care, not for "palliative" medical care. Once the condition is permanent or stable, or if future treatment will relieve pain but not actually improve the seaman's condition, payment for cure is not recoverable. Employers often argue against payment of some treatment bills, claiming that the treatment does not improve the seaman's condition but only makes them feel better!

The employer must pay for maintenance and cure until the injured seaman reaches the point of “maximum medical cure”, that is, until the injured seaman has either totally recovered or has recovered to the maximum extent that medical science will provide. Maximum cure does not depend upon the ability to return to work but is only reached when through the application of modern methods of rehabilitation under medical supervision, the seaman is returned, as near as may be, to the status of a functional human being.

Maritime law imposes a strict duty on the employer to pay unearned wages, maintenance and cure. An employer who willfully refuses or fails promptly to investigate the injury and pay maintenance and cure claims may be liable for the seaman's attorney's fees. Damages for aggravation or worsening of an injured seaman's condition caused by the employer's failure promptly to provide cure are also recoverable.

A seaman may recover more than maintenance, cure and unearned wages if he or she can establish some basis of liability against his or her employer for negligence, or against the vessel for unseaworthiness. These two theories are quite separate.

When a vessel employs a seaman, as a part of the contract of employment, the vessel owner warrants to the seaman that the vessel and all of its equipment and appliances are seaworthy. The warranty of seaworthiness means that the vessel and all of its various fittings and equipment are "reasonably fit for its intended use". To be seaworthy, the vessel, including its crew and appurtenances, must be reasonably safe to use for its intended purpose.

The duty to provide a seaworthy vessel is a duty owed by the vessel owner. Alternatively, a seaman may bring an action against the vessel itself as a defendant. This duty is owed to the seaman regardless of whether the vessel owner is also the employer of the seaman. For example, a private contractor employs the food service workers aboard the Washington State Ferries. The vessels are owned by the State of Washington . It is the duty of the State of Washington to provide a seaworthy vessel, even though it does not employ the food service workers.

The duty to provide a seaworthy vessel is nondelegable and is absolute. It is not affected by the exercise of due care or the lack of any negligence on the part of the vessel owner. A seaman who is injured as a result of the unseaworthiness of the vessel, any part of it or its equipment, is entitled to recover damages against the vessel owner or the vessel itself.

Examples of unseaworthy conditions include unreasonably slippery decks, insufficient or incompetent crew, defective or improperly tied lines. A slippery deck is unseaworthy because it is not reasonably fit to be walked on, its intended use. Similarly, a line that breaks or a hammer with a broken handle is not reasonably fit for its intended use. These all make the vessel unseaworthy and render the vessel owner liable to a seaman who is injured as a consequence.

It is the Jones Act, 46 U.S.C. 688, which gives a seaman the right to bring an action against his or her employer for an injury caused by negligence while the seaman is in the course of his or her employment . The Jones Act provides seamen with the same remedies as railroad workers under the F.E.L.A., 45 U.S.C. 51-60. A seaman's employer has a duty to exercise reasonable care to provide the seaman with a safe place to work and is liable to a seaman who is injured as a result of the negligence of any of its employees. The violation of a safety rule or regulation can establish Jones Act negligence on the part of the maritime employer.

The rule for causation is also more lenient under the Jones Act than in land-based claims. In order to recover, the injured seaman need only show that the negligence contributed even in the slightest degree to the injury. Violation of a safety statute or regulation creates a rebuttable presumption of causation.

Maritime law is constantly changing and developing. As with other federal common law subjects, there are not infrequent inconsistencies between the decisions in the different circuit Courts of Appeal. It is recommended that you consult with a qualified maritime lawyer to be certain of the application of these general rules to any particular case.

Copyright © 2005 FuryBailey.com - Sitemap