May 28, 2009Rights of Seamen
By Edwin D. Robb, JD
I must go down to the seas again, to the lonely sea and the sky.
—John Masefield, Sea Fever
For mariners “…that go down to the sea in ships, that do business on the great waters…” (from Psalms 107:23-30), working conditions are dangerous. The days, weeks, and sometimes, months at sea are taxing.
Since the days of “iron men and wooden ships,” the rights of seamen v. their employers for personal injuries or death in the course of employment have been greater than those of their landlubber counterparts. Despite advances in technology on automated vessels subject to increased scrutiny by governmental agencies and insurers, work at sea can still be hazardous.
In addition to “traditional” service at sea on commercial cargo ships, seamen work on vessels engaged in towing, fishing, oil drilling, and dredging as well as those in the cruise ship industry. Vessels can include barges, dredges, ferries, mobile drilling rigs, tugs, fishing boats and yachts. Some vessels rarely or never enter the oceans (blue water) but remain in the inland navigable waterways (brown water).
Seaman Status
To qualify as a seaman, and, thus, as a member of the crew, the worker must contribute to the function of the vessel on which he or she is employed (e.g., mate, deckhand, engine room personnel, cook, welder, bartender, etc.). However, involvement with the actual navigation of the vessel (helmsman/mate) is not required.
Also, the employee must have a connection to the vessel in navigation (or identifiable group of vessels) that is substantial both in duration and in nature. In that respect, the US Supreme Court has referred to a rule of thumb adopted previously by other courts—the employee must spend at least 30 percent of his or her time in service on the vessel and be engaged in the function of the vessel to qualify as a seaman (Chandris v. Latsis, 515 U.S. 347 (1995) (not, however, an ironclad rule).
Shore-based workers, such as stevedores/longshore personnel/shipyard workers not in the employ of the vessel owner, but who board vessels periodically to work onboard, are not seamen. These workers have only a transitory and sporadic connection to the vessel.
The seaman or his/her personal representative has three basic rights against an employer/vessel owner/operator:
1. Right to sue in tort under the Jones Act
2. Right to sue for unseaworthiness under the General Maritime Law
3. Right to Maintenance and Cure
Jones Act
Under the Jones Act, 46 U.S.C. §30104, a seaman has the right to sue his or her vessel owner/employer in tort for injuries sustained in the course of employment on a vessel that operates in navigable waters, or by the personal representative for the seaman’s death. The test for recovery for incidents sustained on the vessel or ashore in the course of his/her service is whether the employer/vessel owner was negligent in failing to exercise reasonable care to provide a reasonably safe place to work (a non-delegable duty). The employer can be liable for unsafe vessel conditions or for the negligence of its crew.
Several typical instances where seamen may recover in tort under the Jones Act are as follows:
• Failure to warn of known hazards (if not open and obvious to
the employee)
• Defective/malfunctioning winch
• Improperly trained fellow crew member(s)
• Unsafe gangway leading to the vessel
• Injury on the dock while repairing a ship’s hydraulic hose
The vessel owner does not warrant/insure an accident free vessel. Thus, the employer may not be liable to its employee/seaman for open and obvious conditions on the vessel that the crewmember should notice, e.g., obvious grease or equipment on a deck. However, the employee’s burden to prove causation is “slight,” and, therefore, not as heavy as in a landside tort case (Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898 (6th Cir. 2006).
With some limited exceptions, the remedies for land-based maritime workers (non-seamen) against their employers are for workers’ compensation benefits, i.e., under The Longshore and Harbor Workers‘ Compensation Act, 33 USC §901 et seq (excluding coverage for members of a vessel’s crew, and in some states for state compensation benefits. Additionally, if these shore-based individuals can prove that the third party vessel owner was negligent in causing their injuries, they have a right to recover against the vessel owner in tort (33 USC §905(b)).
A seaman may bring a Jones Act tort action against the employer and obtain a jury trial (46 USC §30104). If the action is brought in state court, the employer cannot remove the case to federal court (28 USC §1445(a)). The seaman can also sue in federal court and obtain a jury trial 28 USC§1331.
General Maritime Law
In addition to rights under the Jones Act, a seaman can also sue the employer under common law General Maritime Law principles. The vessel owner owes the seaman an absolute duty of providing a “seaworthy” vessel free of defective conditions. These conditions include not only appurtenances of the vessel, e.g., ladders, machinery, etc., but also a properly trained crew.
A seaman can recover if he or she can prove a defective condition (not simply operational negligence of a competent crew member) and proximate, causal connection between the defective condition and the injury. There is no requirement to prove negligence.
The test for recovery is whether the vessel, its equipment, and/or crew were reasonably fit (Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960). However, as in the Jones Act decisions, there is no warranty that the employer/vessel owner will provide an accident free vessel. Often, plaintiff’s counsel will join a count for unseaworthiness under the General Maritime Law with a Jones Act action.
Damages
Under the Jones Act and the General Maritime Law, seamen sustaining personal injuries can recover for the following elements of pecuniary loss.
• Past lost wages
• Loss of future earning capacity
• Past and future medical expenses
• Pain and suffering (including loss of life’s enjoyment, mental anguish
• Pre-judgment interest (in certain cases)
The personal representative of a deceased seaman has a right to bring an action on behalf of the deceased’s beneficiaries. These rights include a wrongful death action to recover losses sustained by the beneficiaries, e.g., financial support and a survival action to recover losses that the decedent sustained prior to death—such as pain and suffering.
Although subject to some disagreement, most courts have held that non-pecuniary damages, e.g., loss of society/consortium, punitive damages are not recoverable to seamen and beneficiaries under the Jones Act, or under General Maritime Law (Miles v. Apex Marine Corp, 498 US 19 (1990).
Unlike tort actions brought under some state laws, a seaman’s comparative negligence simply reduces the recovery by a percentage of the negligence (pure sliding scale). In other words, a seaman found to be 75 percent at fault would recover 25 percent of the total damages.
Maintenance and Cure
For almost 200 years, US seamen injured or becoming ill in the course of their employment have been entitled to Maintenance and Cure benefits from employers. These benefits are somewhat similar to workers’ compensation.
Maintenance is the right to receive payments for food and lodging (a subsistence allowance). The historical basis is that if the seaman becomes ill or is injured in the service of the vessel and cannot work on the vessel where food and lodging are provided, he/she is entitled to receive reasonable maintenance payments calculated at a daily rate.
If the seaman can demonstrate incurred costs, payments continue until the seaman reaches “maximum cure” (a point at which, from a medical view, no future treatment will better the seaman’s condition). The amount of Maintenance awards varies depending on the proof of expenses. Some Maintenance payments may be governed by an employment contract.
The seaman is also entitled to receive Cure , I.e., medical benefits until the point of maximum cure. Like Maintenance, Cure benefits are paid for injuries/illness sustained on the vessel and ashore if in the course of employment.
Unlike actions under the Jones Act and for unseaworthiness, comparative negligence of the seaman will not bar or reduce the right to recover Maintenance and Cure. The one exception is that if the seaman’s injuries are caused by his/her willful conduct, there is no right to recovery.
There is a classic case relating to this defense that involved a seaman on shore leave. To avoid paying for certain services and to evade a brothel’s bouncer, he jumped out of the second story and sustained injuries. Surprisingly, the court held that his misconduct in the brothel had ceased, and that his quick exit was an effort to save the life of a good seaman. He was awarded Maintenance and Cure (Koistenen v. American Export Lines, 1948 AMC 1464 (1948).
Examples of misconduct in which courts will deny a claim for Maintenance and Cure are fighting (if the claimant is the aggressor), alcoholism, and venereal disease.
For more thorough information on seamen’s rights, there are a number of treatises on the subject, most notably, Admiralty and Maritime Law (4th Edition) by Thomas J. Schoenbaum. This work is regularly consulted and cited by practitioners in Admiralty Law.
About the Author:
Edwin D. Robb is a partner in the firm of Bouhan, Williams & Levy, LLP, Savannah, GA, where he specializes in Admiralty Law. He is a graduate of Dartmouth College and earned his JD from the University of Georgia School of Law where he was a member of the Law Review and a published author.
He is a former US Navy Lieutenant Commander and served on ships both in the Pacific and Atlantic Fleets. He is an active member of the Maritime Law Association of the United States and The Southeastern Admiralty Law Institute. He has presented papers and has lectured at various maritime law seminars.
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