Oceans has always been a dangerous place for seafarers. Seafarers have to work long hours in harsh conditions and exposed to the hazards of storms, pirates and other maritime perils. Even during the Middles Ages, maritime codes included provisions requiring shipowners to provide cures for crew members’ injury or sickness. Early forms of seafarer compensation laws have survived to the present day. Furthermore, more modern maritime laws allow seafarers to take a cause of action for injuries caused by fellow crew members or caused by ship unseaworthiness.
Specific remedies for seafarers are available and how specific remedies are measured, depend on a number of factors:
- precise status of the injured seafarer
- place where the accident happened
- cause of the accident
Injured seafarer has three (3) broad categories of remedies available, depending on the circumstances of the accident involved:
- Maintenance and Cure is the maritime equivalent of workmen’s compensation; a no-fault compensation scheme based on the general maritime law, rather than any statute
- Warranty of Seaworthiness is based on the general maritime law principle that a ship owner has an absolute duty to provide a seaworthy ship to the seafarers who operate it. If a seafarer is injured because the ship was unseaworthy, the seafarer is entitled to compensation.
- The Jones Act is the name given to legislation from 1920 that gave seafarer the right to bring a civil action against their employer for injuries caused by the negligence of their fellow crew members and officers. Prior to that time, the courts had held that ship owners were not vicariously liable for the negligence of other seafarers.
Categories of Crew Members on Ships:
Crew members on ships are classified for purposes of determining their remedies for injuries. Determining the relationship of the injured crew members is the first step. Because crew members interests, duties, and relationships to the ship are different. Maritime law distinguishes between
- Persons for whom the ship is their worksite
- Persons who are only temporarily on board as workers
- Persons who are on board the ship temporarily for their own purposes
According to maritime law, persons on ships are classified into three (3) broad categories:
- Seamen: employed as permanent members of the ship’s crew
- Non-seaman maritime workers: on the ship as part of their employment, but who are not members of the ship’s crew.
- Non-seaman and non-maritime workers: none of the above categories and these persons include passengers, visitors, guests, and all others.
According to maritime law, seamen are members of a ship’s crew. Due to range of maritime employment scenarios, it might be sometimes be difficult distinguish if a person on board is a seaman or not. A seaman is entitled to the protections of the Jones Act and other seaman remedies, known as a Jones Act Seaman. In order to determine whether a person on board is a seaman or not, United States Supreme Court has a set of factors:
- Person must work on a ship. Test is whether the person’s job site is on a particular ship. If not, the person is not a Jones Act Seaman
- Person must contribute to the ship’s function or mission, as contrasted to persons whose presence on the ship is merely coincidental
- Person must have a connection to the ship that is substantial in duration; to set apart persons whose connection to a ship is merely transitory or sporadic
- Person’s connection to the ship must be substantial in nature; to distinguish persons whose connection to the ship is not significant.
In order to figure that out if a person is a seaman or not, courts look at the total circumstances as a mixed question of law and fact.
A person does not have to navigate a ship to be a seaman. Generally, many cases refer to seamen whose duties aid in the navigation of the ship. But in practice, that does not mean that the person has to steer the ship or plot its course. If a person’s duties are directly related to the mission of the ship, that person is a seaman. For example:
- Person who operates the engines is a seaman
- Person who prepares meals for the crew is a seaman
- Person who works as a steward on a passenger ship is a seaman
United States Supreme Court stated substantial duration in seaman test. However, Supreme Court did not prescribe any specific period of time for a person to qualify as a seaman. Courts check if that person is a full-time mariner and control person’s average work-week on ship. For example:
- A person who starts a full-time job as a deckhand in the morning and is injured in the afternoon may be a seaman, since at the time of the injury, 100% of the person’s work-day was on the ship
- A person could serve on a ship for two weeks before getting hurt and still not be a seaman, if the person’s regular duties involve work ashore, and the time on board was temporary duty.
According to maritime law, in order to be categorized as a seaman, a person does not have to work on one particular ship. Issue is whether the person is an honest-to-goodness crew member or just a person who happens to be working on a ship at the time of the accident. Generally, this will mean that the person is permanently attached to a particular ship. Some persons, though, while clearly full-time seafarers, work for a specific fleet, rather than one particular ship. For example, a tug captain, or a water ferry captain, may work full-time operating ships for a particular employer, but the particular ship may vary from day to day. Courts recognize that a person can still be a seaman, if the person is part of a crew members that operates a specific fleet, rather than one particular ship.
Under Jones Act Seaman, a ship pilot is not a seaman. Although pilots are usually consummate mariners, highly trained, and highly skilled, who navigate large ships through crowded harbor waters every day, they are not considered seamen for purposes of the Jones Act. Because, ship pilots are not permanently connected to a ship or particular fleet of ships, but act more in the nature of visiting experts. Even though, ship pilots spend their days navigating ships, ship pilots are not subject to the protective provisions of the Jones Act.’
According to maritime law, working on a barge count as working on a ship. United States Code defines a ship as including every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water. United States Code does not require that a watercraft be in motion or capable of self -propulsion. According to United States Code, a ship is used, or capable of use, as a means of transporting people or things on the water. If a barge is permanently fixed in a given position, liked floating park, restaurant or casino, then the fact that it floats isn’t enough to make it a ship. Barges, such as cargo or tank barges, non-self-propelled dredges or similar craft are all ships for purposes of the Jones Act.
Examples of Seamen and Non-Seamen:
- Ship Master
- Ship’s Cook
- Cook on a passenger ship
- Rigger on an oil drilling ship
- Ship’s Clerk on a ship
- Bartender on a dinner cruise ship
- Dive-master on a diving excursion ship
- Captain on a fishing excursion boat
- Bargeman on a tank barge
- A tug captain working for a fleet
- Guest entertainer on a cruise ship
- Security team member for Red Sea transit
- Ship superintendent visiting ship
- Training team member on board for voyage
- Company representative sailing with cargo
- Classification surveyor
- Volunteer crew on weekend racing yacht
- Technical representative
- Ship pilot
Seaman’s Right to Maintenance and Cure
Cure: right of an injured seaman to medical care
Maintenance: right of an injured seaman’s living expenses during the period of time that the seaman is being cured
Right to maintenance and cure is limited in time. Maintenance is payable up to the point that the seaman reaches maximum cure. Once the seaman has reached maximum cure, then even if the seaman is not fully cured, the right to maintenance and cure ends.
Only injuries of seaman that are incurred in the service of the ship are covered. If seaman’s injury is incurred without misconduct, either on board or on shore leave, it will have been incurred in the service of the ship.
Maintenance and Cure Cases:
One of the popular maintenance and cure case, United States Supreme Court held that an intoxicated seafarer who fell from a second floor balcony adjoining a dance hall during shore leave and broke his leg. Despite the location and the circumstances, nevertheless seaman was in the service of the ship. Quoting from an earlier case dealing with seamen injured while returning from shore leave, the court noted that: To relieve the shipowner of his obligation in the case of injuries incurred on shore leave would cast upon the seaman hazards encountered only by reason of the voyage. Normal uses and purposes of shore leave are exclusively personal and have no relation to the ship’s business. Seaman cannot live for long cooped up aboard ship, without substantial impairment of their efficiency, if not also serious danger to discipline. Relaxation beyond the confines of the ship is necessary if the work is to go on, more so that it may move smoothly. No master would take a crew to the sea, if master could not grant shore leave and no crew would be taken, if it could never obtain shore leave. Shore leave is an elemental necessity in the sailing of ships, part of the business as old as the art, not merely a personal diversion. Voyage creates not only the need for relaxation ashore, but necessity that voyage would be satisfied in distant and unfamiliar ports.
Seaman contracts disease or incurs injury, without disqualifying misconduct, it is because of the voyage and shipowner’s business. Ship voyage and shipowner’s business has separated seaman from his usual places of association. Seaman is separated from living habitat and working aboard of a ship, it forges dual and unique compulsions for seeking relief wherever it may be found. It is the ship’s and shipowner’s business which subjects the seaman to the risks attending hours of relaxation in strange surroundings. It is reasonable that business extend the same protections against injury from them as it gives for other risks of employment.
Effect of Seaman’s Own Negligence
Maintenance and cure are still payable if seaman was injured due to seaman’s own negligence. Fully payable regardless of seaman’s own negligence. A seman’s own foolishness or stupidity is not a defense to a claim for maintenance and cure. Absent willful misconduct, a seaman’s injury incurred in the service of the ship will be payable, regardless of negligence. If a seaman disobeys ship rules by not wearing a safety harness and falls into a cargo hold because of it, the injuries (maintenance and cure) are still covered. However, if the injury is due to willful misconduct, then maintenance and cure will not be payable. For example, illness due to sexually transmitted diseases (STDs) has long been held to be outside the scope of maintenance and cure.
Payment of maintenance and cure is an obligation of both the seaman’s employer (shipowner) and the ship itself. If employer (shipowner) fails to pay maintenance and cure, seaman can bring a maritime lien against the ship itself (in rem). If necessary, seaman can bring the case and have the ship arrested and sold to pay the debt. If seaman injury is caused by the negligence of someone else (third party), seaman’s employer (shipowner) can bring a claim for contribution against the wrongdoer. If the wrongful action is a non-maritime tort, such as a defective dance hall balcony or auto accident, then the cause of action will be under the applicable local law. If wrongful action is a maritime tort, then employer (shipowner) have a maritime claim for contribution.
Seaman’s claim for maintenance and cure is one that is based on maritime law. Traditionally, a state court would not have jurisdiction to try maintenance and cure issues. Because state law does not have a counterpart to maintenance and cure. The only exception is when a maintenance and cure claim is joined to a Jones Act claim, in which case the action can be tried to a state court.
Seaman’s claim for maintenance and cure do not bar a Jones Act claim. A seaman can only get one recovery for one injury, but a seaman can combine a claim for maintenance and cure with a claim for recovery under the Jones Act and for recovery for an unseaworthiness claim. Because the damages under the Jones Act and the unseaworthiness claim may be more generous than the recovery under maintenance and cure, seamen often combine their claims.
In shipping, when a seaman is employed on a ship in navigation, operator of the ship owes the seamen serving aboard an absolute, non-delegable duty to provide a ship that is reasonably fit for its intended use. That means that the ship must be reasonably fit for its intended purpose in its hull and equipment, and also with regard to other crew members. Since the standard is defined as an absolute duty that means that an injured seaman bringing a claim based on unseaworthiness does not need to prove that the ship operator was negligent or even knew about the unseaworthiness.
In order to establish a seaman’s claim for unseaworthiness, a seaman only has to prove the following:
- person was injured by or on a ship in navigation
- person was a seaman on the ship
- ship was not reasonably fit for its intended use
- injury was proximately caused by the unseaworthy condition of the ship
An injured seaman can bring an unseaworthiness claim against the ship owner and/or the person in operational control of the ship (bareboat charterer). A seaman can also sue the ship itself (in rem).
A seaman can recover only pecuniary (relating to or consisting of money) damages for an unseaworthiness claim. A seaman cannot recover for loss of society, punitive damages or similar non-pecuniary claims. A seaman’s claim based on unseaworthiness is a maritime remedy, not a common law remedy. For this reason, only a court with maritime jurisdiction can try an unseaworthiness claim. That means that the claim has to be brought in federal court, unless the claim can be joined to another claim brought in state court.
When a seaman sue shipowner for unseaworthiness and later on that seaman cannot sue for negligence under the Jones Act. Once a seaman brings a claim for an injury arising out of a specific incident, the seaman must bring all related claims and any potential claims not brought are waived.
In United States, Jones Act claim is a claim for an injury (or wrongful death) caused by negligence. Specifically, Jones Act allows a seaman to bring a claim against a maritime employer (shipowner) for injuries caused by fellow employees. In United States, if a seaman falls overboard and is injured because a fellow crew member failed to properly secure a lifeline, the injured seaman can bring suit against the employer (shipowner) for the negligence of the fellow crew member.
In United States, in order to establish a claim under the Jones Act, injured seaman must prove:
- person was injured by or on a ship in navigation
- person was a seaman on the ship
- fellow employee or borrowed servant of the employer acting in the scope of the person’s duty had a duty towards the seaman
- fellow employee was negligent in performing that duty
- negligence proximately caused the injury to the seaman
According to United States Jones Act, theoretically the burden of proof in a Jones Act case is the same as in any other civil case, the plaintiff must prove his or her case to a preponderance of the evidence (plaintiff’s case must be more likely than not). On the other hand, because the courts are particularly protective of seamen, in Jones Act cases as a general matter, a court will only grant a directed verdict or judgment notwithstanding the verdict (e.g., overturn a jury verdict in favor of the plaintiff) when there is no scintilla of evidence (piece of evidence) to support a verdict for the complaining seamen.
Under Jones Act, a seaman can still recover, if the seaman was negligent. A claim based on negligence is subject to maritime law’s rule of comparative fault. If the injured seaman was also negligent, then the total recovery is reduced by the seaman’s share of the fault, stated as a percentage. Nevertheless, a seaman cannot be found negligent for undertaking a duty assigned by the marine employer (shipowner) and cannot be deemed to have assumed any risk by trying to perform his or her duties. In a similar manner, employer (shipowner) cannot contract away its duties towards employees. If employer (shipowner) breaches a safety statute and the seaman is injured as a result, employer (shipowner) is absolutely liable.
In United States, Jones Act provides a cause of action for personal injuries suffered by seamen in the course of their employment, resulting from physical danger (periI). Nevertheless, it does not provide a cause of action for injuries caused by work-related stress or excessive work hours, because work-related stress is not a physical danger (peril). A seaman can recover for injuries arising from the negligent infliction of emotional distress, if the emotional distress is caused by a physical impact or the immediate risk of physical harm by the allegedly negligent conduct (zone of danger). A seaman cannot recover for emotional distress caused by reasons beyond physical injury or being placed in a zone of danger. For example, emotional injury due to post-traumatic shock from being nearly injured by an accident due to negligence would give rise to a valid cause of action. However, a heart attack caused by excessive work-related stress, however caused, would not give rise to a cause of action under the Jones Act.
In United States, under Jones Act, just as with a claim for unseaworthiness, an injured seaman is only entitled to pecuniary (monetary) damages such as lost income, medical expenses, and pain and suffering. Non-pecuniary damages, such as loss of society and punitive damages are not recoverable.
A seaman cannot claim a maritime lien under the Jones Act. Because a Jones Act claim is a claim against the maritime employer (shipowner), it does not give rise to a maritime lien or in rem remedy against the ship itself.
According to United States federal law, Jones Act nevertheless expressly permits actions to be brought in state courts, before a jury. Because the nature of a Jones Act claim, a negligence action, is a traditional common law tort case. Consequently, an injured seaman can bring Jones Act claim either in:
- a maritime court—a federal court, before a judge alone
- a state court with a jury
Injured Foreign Seamen’s Remedies in United States:
According to Jones Act, even a foreign seaman can bring a claim for seamen’s remedies, if the court has jurisdiction over the defendant. Before the defendant employer (shipowner) can be subjected to defend a Jones Act case, plaintiff (injured seaman) would have to show that the defendant is subject to the United States court’s jurisdiction because
- employer (shipowner) has an office in the United States
- employer (shipowner) does business in the United States or has otherwise subjected itself to the power of the court
In some cases, a court could determine that it has jurisdiction over the defendant employer (shipowner), but still decline to hear the case, if the court concludes that another forum would be more appropriate, under the doctrine of forum non conveniens (inconvenient forum). A court may dismiss a case under the doctrine of forum non conveniens if court finds that another court has jurisdiction, that another jurisdiction would be more convenient or appropriate for the parties and the witnesses and the parties can obtain a fair trial in that other jurisdiction. When United States court tries a personal injury case involving a foreign seaman and foreign employer (shipowner), the court may go through a choice-of-law analysis to determine which law would be most applicable to the case. In doing that analysis, the court would balance the following factors:
- place where the alleged wrongful act happened
- law of the flag
- citizenship of the plaintiff (injured seaman)
- citizenship of the defendant (shipowner)
- place and choice of law of the seaman’s contract
- inaccessibility of the foreign forum
- law of the forum (where the trial is held)
- law of the ship owner’s base of operations
Jones Act seaman’s claim should not be tried separately. Most cases involving personal injury to a seaman include all three (3) potential claims:
- maintenance and cure
- Jones Act negligence claims
Each of the claims is slightly different and between the three, courts cover a range of possible proofs and remedies. Once a court has jurisdiction over one of the claims, a court will almost always accept jurisdiction over related claims, allowing the same court (whether a federal admiralty court or a state court) to decide all three claims. Only limiting factor is that a state court cannot adjudicate a maritime lien claim (such as for maintenance and cure or unseaworthiness) against a ship. Federal court can adjudicate a maritime lien claim against a ship