Beware of the Curve Ball
REPRESENTATION OF INJURED SEAMEN AND LONGSHOREMEN AND HARBOR WORKERS
Jacques Barzum, a noted cultural critic and historian, wrote “[whoever wants to know the heart and mind of America had better learn baseball, the rules and realities of the game . . . ” In that respect, baseball and maritime personal injury law have a great deal in common: one has to know the rules and realities of both to understand them.
If the rules and realities of the general maritime law, designed to protect injured maritime workers, are not fully understood or grasped, then a lawyer may find himself in a position similar to President Franklin D. Roosevelt’s in the last days of his life: “like a baseball team going into the ninth inning with only eight men left to play.” This is a position that no lawyer ever wants to find himself in while representing a client.
On a daily basis in South Carolina, maritime workers, including seamen, dredge workers, longshoremen, pleasure boat captains, checkers, stevedores, vessel repairers, harbor pilots, bridge builders and harbor workers, are exposed to work-related hazards and job duties that are very different than those to which land-based, workers are exposed. This difference has been recognized by both the U. S. Congress and the courts, which have enacted special statutes and created remedies to address personal injuries to maritime workers. U.S. Supreme Court Justice Story, acknowledging the need to protect the welfare of seamen, wrote what became the mantra for admiralty cases: “[every court should watch with jealousy an encroachment upon the rights of seamen, because they are unprotected and need counsel. They are emphatically wards of admiralty … they are treated in the same manner as courts of equity are accustomed to treat young heirs.” Harden v. Gordon, 11 Fed. Cas. No. 6047 (Cir. Ct. D. Ma. 1823).
This article will briefly address the rights and remedies of injured maritime workers under the general maritime law. In handling work related personal injury cases involving maritime workers, the first step an attorney must take, whether representing the worker, vessel owner or employer, is to determine the status of the maritime worker. The maritime worker’s status determines the type of claim the worker will possess under the general maritime law. Unfortunately, there are occasions where the employee’s job duties make it extremely difficult to determine his job status. When these situations arise, it is imperative that his lawyer take the necessary steps to protect the client’s rights under each statute. This may become problematic in developing a strong strategy to maximize the client’s recovery as conflicts arise between the statutes.
A maritime worker who is employed as a seaman is entitled to bring claims for job related injuries under the Jones Act, 46 USC App. 688, for maintenance and cure and for unseaworthiness. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960). Longshoremen, stevedores, harbor pilots, vessel repairers, bridge workers and other harbor workers are entitled to apply for benefits under the Longshore and Harbor Worker’s Compensation Act, 33 USC §§ 901-950. The types of damages recovered by seamen and harbor workers, in many instances, are unique when compared to the damages land-based workers can recover under the South Carolina Worker’s Compensation Act.
Personal Injuries of Seamen
Seaman’s claim for maintenance and cure
The general maritime law permits every seaman who becomes ill or injured during the course and scope of his employment, regardless of who was at fault in causing the illness or injury, to maintenance, cure and unpaid wages until the end of the voyage on which the illness or injury occurred. A seaman does not have to show a causal relationship between his employment as a seaman and his injury. Instead, a seaman is entitled to maintenance and cure if he meets the burden of proof that his injury or disability occurred while he was generally answerable to the call of duty or in the service of the vessel. Farrell v. United States, 336 U.S. 511,1949 AMC 613 (1949); Waterman S.S. Corp. v. Jones, 318 U.S. 724, 1943 AMC 451 (1943).
Employers will sometimes attempt to delay the payment of maintenance and cure. Unlike worker’s compensation cases where you can file a claim with the South Carolina Worker’s Compensation Commission to request a hearing to have a recalcitrant employer pay compensation and for medical benefits, no such commission exists for a seaman who does not receive maintenance and cure. Instead, a seaman must file suit in either state or federal court for the failure to pay maintenance and cure. These types of suits sometimes take as long as a civil suit to resolve. During this time period, the client may have no means of supporting himself.
“Maintenance” is defined as the reasonable cost of the seaman’s room and board while living ashore until the seaman is fit to return to duty or has reached maximum medical cure. Maximum medical cure occurs when the maximum benefit of medical treatment has been received by the seaman and further treatment either will not be curative in nature or the seaman’s injuries will not improve with additional treatment. Vella v. Ford Motor Co., 421 U.S. 1, 1975 AMC 563 (1975). “Cure” is defined as the reasonable cost of curative medical treatment until the seaman reaches maximum medical cure. Thus, the seaman’s employer must pay the seaman maintenance money for his food, room and board until he reaches maximum medical cure.
The amount of maintenance to be paid is determined by the cost of the seaman’s monthly living expenses for necessities such as electricity, water and food while he is injured and not living on board his vessel. The purpose of maintenance is to provide the seaman with room and board during the period he is recovering from his injuries; it is not to compensate him for his lost wages during this period. Recent court decisions have indicated the portion of a seaman’s maintenance check allocated for room and board, should not be reduced due to other people, such as his family, living with the seaman.
“Cure” is the payment of medical expenses associated with the injury. Regardless of liability, an employer is required to pay for a seaman’s medical expenses associated with his injury or sickness until a doctor indicates that any future medical treatment will no longer be curative in nature. Kossick v. United Fruit Co., 365 U.S. 731, 1961 AMC 833 (1961). “Curative nature” is defined as medical treatment that will improve a seaman’s injuries as compared to medical treatment that will make the seaman’s injuries more “palatable,” or less painful.
Seaman’s Jones Act Claim
Although a federal workers’ compensation statute has not been enacted that applies to seamen, the Jones Act provides a cause of action for negligence against an employer for any seaman injured in the course his employment. Chandris Inc. v. Lattsis, 115 S. Ct. 2172, 2182, 1995 AMC 1840, 1844 (1995). “A seaman is entitled to recovery under the Jones Act, therefore, if his employer’s negligence is the cause, in whole or in part, of his injury.” Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335, 1997 AMC 1521, 1526 (5 Cir. 1997). To recover damages under the Jones Act, the seaman’s injuries or death must arise from the negligent acts of the employer, its agents or employees or from a defect in the employer’s equipment that resulted from the employer’s negligence. Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 436 (4th Cir. 1999). The Jones Act creates an affirmative duty on the part of the seaman’s employer to provide the seaman with “a reasonably safe place to work,” Gautreaux, 1997 AMC at 1526, 107 F.3d at 335. In order to establish Jones Act negligence, it is often necessary to retain a qualified maritime expert to assist with liability. Often, these experts do not live in South Carolina.
“Jones Act actions can only be brought against a seaman’s employer” and are in addition to unseaworthiness claims that may be brought against the vessel owner or operator. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 1949 AMC 1031 (1949); Davis v. Hill Engineering, Inc., 549 F.2d 314, 1977 AMC 1090 (5 Cir. 1977). In other words, in order to recover for personal injuries under the Jones Act, a seaman must prove that his employer’s negligence caused his injuries.
Who is a Jones Act seaman-
The Jones Act does not define the critical term “seaman” and thus “leaves to the courts the determination of exactly which maritime workers are entitled to admiralty’s special protection.” Chandris, Inc., 115 S. Ct. at 2183, 1995 AMC at 1845. In developing a test for seaman status, the Supreme Court has focused “on the nature of the seaman’s service, his status as a member of the vessel, and his relationship as such to the vessel and its operation in navigable waters.” Id. 115 S. Ct. at 2185, 1995 AMC at 1849. The key to seaman status is the maritime worker’s employment-related connection to a vessel in navigation. An employment-related connection to a vessel exists if two conditions are satisfied: first, an employee’s duties must “contribute to the function of the vessel or to the accomplishment of its mission,” or doing ship’s work. Id. 115 S. Ct. at 2190,1995 AMC at 1856. Second, the employee’s connection to the vessel (or to an identifiable group of such vessels) “must be substantial in both its duration and nature.” Id.
The first prong of the Chandris seaman status test focuses on the employee’s employment at the time of the injury. In satisfying this requirement, the seaman does not have to aid the vessel in navigation, see McDermott International, Inc. v. Wilander, 111 S. Ct. 807, 816, 1991 AMC 913, 927 (1991); rather, the employee must merely “perform the work of the vessel.” Id. 111 S. Ct. at 817, 1991 AMC at 927. This standard is very liberal. The Supreme Court has said that “all who work at sea in the service of a ship are eligible for seaman status.” Chandris, 115 S. Ct. at 2190,1995 AMC at 1856 (emphasis in original).
A floating object will qualify as a Jones Act vessel when its purpose and function are as an instrument of commerce to transport passengers, cargo or equipment on navigable waters. “Navigable waters” are all waters, including lakes, waterways, rivers, harbors and oceans that are being used by vessels or are capable of being used in interstate or foreign commerce. The Daniel Ball, 77 U.S. 557 (1871). The recent U.S. Supreme Court decision of Stewart v. Dutra Construction Co., 543 U.S. 481, 2005 AMC 609 (2005) broadened the types of objects that qualify for a Jones Act vessel. The issue presented to the Court was whether a dredge is a vessel. The Court found that a dredge, despite its lack of engines, was a vessel. The Court further held that any object capable of transporting objects on water qualified as a vessel.
With regard to the second prong of the Chandris seaman’s test, the Supreme Court has held that courts should not be tempted to use detailed tests to determine seaman status; rather, courts should look to an individual’s employment in connection to a vessel or fleet of vessels to determine seaman status.
In our view, “the total circumstances of an individual’s employment must be weighed to determine whether he had a sufficient relation to the navigation of vessels and the perils attendant thereon.” The duration of a worker’s connection to a vessel and the nature of the worker’s activities, taken together, determine whether a maritime employee is a seaman because the ultimate inquiry is whether the worker in question is a member of the vessel’s crew or simply a land-based employee who happens to be working on the vessel at a given time.
Chandris, 115 S. Ct. at 2190-91,1995 AMC at 1857-58 (citations omitted).
The seaman’s substantial connection to a vessel is to be determined by reference to the period covered by the Jones Act maritime employment, rather than by some absolute measure. Id. 115 S. Ct. at 2191, 1995 AMC at 1857-58. Generally, a worker who spends less than about thirty (30%) percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act. Id. Thus, if an injured worker spends about sixty (60%) of his time working on land and the remaining forty (40%) working on a vessel in navigation, he will be considered a Jones Act seaman.
Jones Act procedure matters
A Jones Act claim may be brought in either federal court or state court. Pursuant to 28 USC § 1333, federal courts have concurrent jurisdiction with state courts over Jones Act claims. This permits a Jones Act claim to be filed in federal court under the court’s admiralty jurisdiction. The $75,000 amount in controversy requirement for diversity jurisdiction, 28 USC § 1332, does not exist for Jones Act claims. This allows the filing in federal court of a Jones Act claim with an amount in controversy of less than $75,000. Jones Act claims may also be filed in state court pursuant to the “saving to suitors” clause of 28 USC § 1333. Generally, there is no right to trial by jury in a civil action involving the general maritime law. However, the Jones Act provides the seaman with the right to elect either a trial by jury or a judge trial. As such, an injured worker can request a bench trial in federal court in his properly pleaded complaint and the defendant is prohibited from requesting and receiving a jury trial.
Jones Act damages
Jones Act damages are much broader than the compensation an employee can receive under the South Carolina Workers’ Compensation Act. A Jones Act seaman can recover both special and general damages from his employer. Special damages are medical care not paid as “cure” through the date of trial, loss of income not paid as unearned wages and other out of pocket damages through the date of trial. Pfeiffer v. Jones & Laughlin Steel Corp., 678 E 2d 453, 460, 1982 AMC 2447, 2456 (3 Cir. 1982). The out of pocket damages include the cost of paying for yard maintenance, domestic services and any other services the Jones Act seaman would have been otherwise able to perform but for his injuries. Special damages also include the maritime doctrine of “found. ” Loss of found is the value of room and board a seaman would have received while working on a vessel if he was not injured.
A seaman is entitled to general damages of compensation for past, present and future pain and suffering, disfigurement, mental anguish, emotional distress, loss of enjoyment of life, future medical expenses and future loss of earnings or loss of earning capacity. Id. Extensive litigation has occurred regarding the recovery of non-pecuniary damages under the Jones Act, which are not recoverable as general damages for injuries or deaths to seamen. Miles v. Apex Marine, 498 U.S. 19,1991 AMC 1 (1990). Non-pecuniary damages consist of compensation for loss of society, loss of consortium and punitive damages. Id.
Depending on the facts of a particular case, the recovery in a Jones Act case can be much greater than the recovery in a worker’s compensation case. Even thought the potential for recovery in a Jones Act case may be great, Jones Act litigation can be very complicated and expensive as compared to a worker’s compensation case. Moreover, employers and their insurance companies routinely retain defense counsel who specialize in maritime litigation and have extensive experience with the general maritime law. Thus, a lawyer handling a Jones Act case must be fully aware of the case law that could have a negative impact on a client’s recovery. If not, then the defense attorney will develop a successful defense strategy.
Seaman’s claim for unseaworthiness
A vessel owner or a vessel operate owes a seaman the duty to provide seaworthy vessel and hence, is liable to the seaman at law for personal injuries caused by the unseaworthy condition of a vessel. It is well settled that the warranty of seaworthiness is separate and independent of any statutory or other general maritime remedies. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498,1971 AMC 277,280 (1971). An unseaworthiness claim and a Jones Act negligence claim overlap to a certain extent as a seaman is entitled to recover the same types of damages for an unseaworthiness claim as he is entitled to recover under the Jones Act. A seaman is not entitled to a double recovery of his damages when he demonstrates that his injuries were caused both by Jones Act negligence and an unseaworthy condition.
Under the general maritime law, a vessel owner or operator owes to every member of the crew on board the vessel a non-delegable duty to keep and maintain the ship and all decks, passageways, appliances, gears, tools and equipment of the vessel in a seaworthy condition at all times. Mahnich v. Southern S.S. Co., 321 U.S. 96, 99, 1944 AMC 1, 5 (1944). The duty of seaworthiness obligates a vessel owner “to furnish a vessel and appurtenances reasonably fit for their intended use.” Mitchell v. Trawler Racer; Inc., 362 U.S. 539, 550, 1960 AMC 1503, 1512 (1960). While the duty of seaworthiness does not require a vessel owner to provide an “accident-free ship,” the doctrine imposes a very strict standard of liability which is completely divorced from concepts of negligence. Id. 362 U.S. at 550, 1960 AMC at 1512. Liability for an unseaworthy condition does not depend upon negligence. Mahnich, 321 U.S. at 100-01, 1944 AMC at 5.
To recover on his claim of unseaworthiness, a seaman must establish by a preponderance of the evidence that (1) he was a member of a vessel in navigation at the time he suffered injury, (2) the vessel was unseaworthy (i.e., some part of the vessel was not reasonably fit to be used for the purpose intended) and (3) the unseaworthy condition caused or contributed to the injury and consequent damage sustained by the seaman. A claim for unseaworthiness exists where “the unseaworthy condition of the vessel was the proximate or direct and substantial cause of the seaman’s injuries” Hernandez, 187 F.3d at 439 (citing Gosnell v. SeaLand Sem, Inc., 782 R2d 464, 467 (4th Cir. 1986)); Williams v. U.S., 12 ESupp. 1132,1989 AMC 2200 (S.D. N.Y. 1989).
The seaman’s causation burden for an unseaworthiness claim is “more demanding” than that of a Jones Act negligence claim. See Hernandez, 187 F.3d at 439. A finding of unseaworthiness is not limited to a determination that a physical attribute of the ship itself is defective. Indeed, a vessel’s unseaworthy condition may arise from any number of circumstances, including situations such as defective gear or appurtenances, an unfit or incompetent crew, improper methods utilized by a vessel in loading or storing cargo or in handling equipment. Usner, 400 U.S. at 499, 1971 AMC at 281. Usually, the same maritime expert retained to assist with proving Jones Act negligence can assist establishing that the vessel owner violated its duty to provide a seaworthy vessel.
Longshore and Harbor Workers’ Compensation Claims
The Longshore and Harbor Workers’ Compensation Act (hereinafter referred to as “Longshore Act”), 33 USC §§ 901-950, is a federal workers’ compensation act designed to protect maritime workers who are neither members of the crew of any vessel nor seamen. The South Carolina Workers’ Compensation Act and the Longshore Act have concurrent jurisdiction over work-related injuries that satisfy the requirements of both acts. Sun Ship, Inc. v. Commonwealth of Pennsylvania, 447 U.S. 715 (1980). While the Longshore Act’s purpose is very similar to the purpose of the South Carolina Workers’ Compensation Act, to provide medical care and compensation benefits to workers who are injured during the course and scope of their employment regardless of the negligence of the employer or employee, substantial differences exist between the two acts.
Normally, the Longshore Act provides the injured maritime worker with much greater compensation benefits than the South Carolina Workers’ Compensation Act. The current maximum weekly compensation rate under the Longshore Act is in excess of $900.00 per week in compensation benefits, while the maximum South Carolina Workers’ Compensation Act rate is less than $600.00 . The difference in the amount of the maximum compensation rates can result in a maritime worker receiving almost double the amount of weekly compensation under the Longshore Act than what he would receive for the same injury under the South Carolina State Workers’ Compensation Act.
A second major difference between the two acts is that the Longshore Act permits the maritime worker to select his treating physician for the injury. The South Carolina Workers’ Compensation Act usually does not permit the injured maritime worker to select his treating physician and lifetime medical care. The Longshore Act does permit the employer to select a physician at its expense to perform an examination of the maritime worker with regard to his claimed injuries. Another major benefit to the injured maritime worker under the Longshore Act is lifetime medical care for the job related injuries. This results in the maritime worker receiving paid medical treatment for his lifetime for the injuries he suffered while at work. In most situations, the South Carolina Workers’ Compensation Act does not permit an injured worker to receive lifetime medical care for his work-related injuries. Other differences between the two acts exist which are beyond the scope of this article.
When representing a client who has a potential South Carolina Worker’s Compensation claim and a longshore claim, it is critical to realize that the client may be entitled to greater benefits under the Longshore Act, than a state claim. In order to protect the client, a claim should be filed under both acts.
Who is covered by the Longshore Act-
A maritime worker will be entitled to coverage under the Longshore Act for work related injuries or death if he satisfies the status and situs requirements of the Act. The status requirement requires that a worker be employed in “maritime employment,” which includes, but is not limited to, any longshoreman, harbor-worker, ship repairman, shipbuilder and ship-breaker. 33 USC § 902(3). Maritime employment encompasses all individuals who are employed in the maritime trade and with job duties that are an essential or integral part of the loading, unloading, repairing or building of vessels. Weyher/Livsey Constructors, Inc. v. Prevetire, 27 E3d 985, 1995 AMC 94 (4 Cir. 1994). Due to the Jones Act and the other general maritime law remedies available to seamen, seamen are specifically excluded from coverage under the Longshore Act. 33 USC § 902(3)(G); Gizoni v. Southwest Marine, Inc., 590 U.S. 951,1992 AMC 305 (1991).
To satisfy the situs test, a maritime worker must be employed, in whole or in part, upon the navigable waters of the United States or any adjoining pier, wharf, dry dock, terminal, building ways, marine railway or any other adjoining area customarily used by a maritime employer in the loading, unloading, repairing, dismantling or building of a vessel. 33 USC § 902(4); 33 USC § 903(a). Additionally, the disability or death of the maritime worker must arise from an injury occurring upon one of the above listed areas. 33 USC § 903(a). For example, a longshoreman injured while working on a vessel in a South Carolina port is covered under the Longshore Act. A harbor worker injured on a pier or at the South Carolina State Ports Authority may be covered as well.
Longshore procedural matters
In contrast to South Carolina State Workers’ Compensation Claims, which are administered by the South Carolina Workers’ Compensation Commission and heard before a workers’ compensation commissioner, Longshore claims are initially administered by the U.S. Department of Labor, Office of Workers’ Compensation Programs, Longshore Division and assigned to a claims examiner. If the claims examiner is not able to assist the parties in reaching an agreement resolving the issues that arise with each claim, the claims are then forwarded to the Office of Administrative Law Judges in Washington, D.C. for a formal hearing. The formal hearing normally occurs in a city in South Carolina to be designated by the administrative law judge to whom the case is assigned.
The injured maritime worker has reporting requirements on special forms designed by the U.S. Department of Labor. Within 30 days after the date of the accident or the date he becomes aware that a relationship exists between the traumatic injury and his employment, the injured maritime worker is required to provide the employer and the district director in whose district the accident occurred with notice of his injury. 33 USC § 912 (a) and (d). In the event that the maritime worker has suffered a permanent disability or is entitled to unpaid compensation benefits as a result of his traumatic injuries, he is then required to file a claim for compensation benefits with the district director within one year of the date of the accident or when he became aware of the connection between the injury and his employment. 33 USC § 913(a) and (b)(2). If the maritime worker fails to file the claim for compensation resulting from traumatic injuries within one year of this date, then the claim for compensation may be barred. Ceres Gulf, Inc. v. Director, OWCP,113 F.3d 17 (5th Cir. 1997).
As a result of the unique and hazardous perils seamen and maritime workers are exposed to on a daily basis in the course of their employment, the general maritime law, through a series of federal statutes and judicial decisions, has attempter to protect injured seamen and maritime workers in a uniform manner across the United States. The general maritime law provides injured seamen and workers with rights that are unique and different from the rights of injured land-based worker In many instances, these rights are much greater than the rights of land based workers and can effectively be used by attorneys to benefit their injured maritime clients.