Seamen’s Injury Remedies
by Nicholas Walsh, PA
Hurt on land, working for some land-bound contractor, factory or shop, and chances are you will look to worker’s compensation law to pay for your care and lost wages. Working at a shipyard, and your relief comes in the form of the federal Longshore and Harborworkers Compensation Act, a sort of federalized worker’s comp program. But once you’ve signed on to a ship, ferry or fishing boat as deckhand, mate, oiler or steward, if you are hurt you will seek help in a complex collection of maritime law, some recent and some very old. There are three basic remedies: Maintenance and Cure, Jones Act Negligence, and Unseaworthiness.
Maintenance and Cure
Maintenance and Cure is the ancient obligation of the shipowner to give an ill or injured sailor “cure”, or medical care, and “maintenance”, or a little money on which to get by while getting better. If you worked on the boat, and you get ill or injured, you get M and C. The illness doesn’t have to have anything to do with the boat. M and C applies to all crew, even a steward scooping ice cream.
Pretty much the only defenses to a M and C claim are lying to the employer about a pre-existing medical condition, getting hurt while drunk or doped up, starting a fight in which you get hurt, and getting hurt while willfully disobeying an order.
The money’s not great. Often a crew contract sets M and C at some low rate such as $25.00/day. You also get crew wages to the end of the voyage, or to the end of the pay period if you are not on a voyage. If a fisherman is hurt, he gets the same share he would have received for the trip. If he’s signed on for a season, he may be able to get the pay he’d have received had he finished out the season.
The obligation to pay M and C ends when the sailor has reached Maximum Medical Improvement. Even if he or she is still disabled, the remedy ends when the sailor’s health has recovered about as much as it ever will.
Jones Act Negligence
Traditionally maritime law gave sailors no remedy (apart from M and C) if the owner’s negligence injured him. The Jones Act is federal law requiring the employer to provide a safe ship and allowing the sailor to sue if the owner is careless (negligent) in allowing an unsafe condition to hurt the sailor.
Jones Act negligence is different from M and C in requiring the sailor to show some fault on the part of the employer. In that respect it’s like the tort law we find on land: If I slip at the market on a rotten banana, I can win compensation for my busted head only if I can show the market was careless, for example if it knew the fruit was on the floor and needed to be cleaned up but for no good reason didn’t get to it. On a boat, an injured sailor can get damages for Jones Act negligence only if he or she can show that the owner without a good excuse allowed some dangerous condition to occur and that the condition caused the injury.
Jones Act negligence could be almost anything: a flawed shackle that should have been X-rayed but wasn’t, a fellow sailor who was a dangerous drunk and the captain knew it but let him drink; a deckplate hatch left open without temporary rails set up, sailing into known bad weather, a chain guard left off a winch to make it easier to service – the list is endless. A sailor who wins the case can recover for medical bills (past and future), disfigurement, lost wages, pain and suffering and loss of enjoyment of life.
Unseaworthiness
Under general maritime law a ship owner unconditionally promises to the crew that the ship is reasonably fit for its intended use. If the boat is badly designed and sinks, if hull plating is thin and gives way, if a radar goes down and the ship thereby is in a collision, if the crew is too small and becomes exhausted and someone gets hurt, if the deck tiles become greasy with fish oil, if a boom drops because of a bad shackle, or if a cook cuts his hand chopping ice cream with a knife because the ship doesn’t have a better tool, the boat is Unseaworthy.
Contrast that with Jones Act negligence. In Jones Act negligence, it’s not negligent to use a brand name shackle that happens to have a dangerous hidden flaw unless a reasonably careful owner would have known of the need to have it tested – if, for example, there was a regulation requiring testing. Unseaworthiness is different. Unseaworthiness is a promise that the ship will be reasonably fit for its intended use, and that promise is not conditioned on whether the shipowner knew or should have known about the hazard. In fact, it is Unseaworthy to use a flawed shackle even if there is no way the owner could have suspected it was flawed and even if there was no industry standard or rule requiring the owner to test the shackle. It’s “unseaworthy” to have a ladder with greasy rungs, even if the sailor who falls down the ladder does so only a minute after the grease got there.
The sailor’s carelessness (“comparative negligence”) can be a defense. For officers or others in a command capacity, there is the additional defense called “primary duty.” If I, chief mate on a freighter, decide to go into a hold to patch a pipe despite knowing there is some loose dunnage rolling around, and the dunnage hits and hurts me, I may not be able to recover.
The remedies for unseaworthiness are similar to those for Jones Act negligence: past and future medical bills, disfigurement, lost income, pain and suffering.
Maintenance and Cure, Jones Act Negligence and Unseaworthiness have one thing in common: They are available only to seamen. But bear in mind that there is a huge and sometimes conflicting body of law on who is a “seaman” for the purposes of these remedies. And the remedies are available only if the injury occurred on a “ship” which is in “navigation”. Lawyers and judges have written literally millions of words trying to provide rules for when an injured employee is a seaman, what is and isn’t a ship, and when a ship is in navigation. For example, a ship can be in drydock and still be in navigation.
Don’t guess, if you were a steward assigned to a permanently moored work barge, or to a spud barge with legs deep in the sea floor, or to a tug halfway through a twelve month drydock, whether you were a Jones Act seaman injured on a ship in navigation. It is often hard enough for even an experienced admiralty lawyer to make the call.
Nicholas Walsh is an attorney specializing in maritime law and waterfront matters. He can be reached at 772-2191, or nwalsh@gwi.net.