As Mainers, we are fortunate to live in the state with the third longest coastline in the continental U.S., trailing only Florida and California. This offers many the opportunity to work at sea in fishing, maritime construction, shipping, oil and many other industries.
However, as anyone who has spent time at sea knows, these maritime positions can pose serious risks that are uncommon in most land-based positions. Fortunately, the Jones Act of 1920 gives injured maritime workers a right denied to land-based workers: the right to sue their employer for injuries caused by the employer’s unsafe conduct.
On Oct. 1, 2015, in one of the worst maritime disasters in American history, the U.S.-flagged cargo ship SS El Faro sank near the Bahamas and its entire crew of 33 perished. The ship’s captain refused to heed repeated weather warnings of fast-approaching Hurricane Joaquin.
In our litigation against the shipping company on behalf of two Maine families who lost loved ones in the tragedy, it was our successful application of the Jones Act that enabled recovery for the devastated families.
The injured maritime employee’s ability to sue his or her employer under the Jones Act is a rare and coveted jewel within the American legal system.
The federal Workers’ Compensation Program prevents virtually all land-based employees from suing their employer, even when their injuries were caused by horrible work conditions or employer carelessness. By contrast, the Jones Act expressly permits injured seamen to sue their employer and holds maritime employers accountable for unsafe conduct, including:
• The careless actions of a co-worker, whether deckhand or captain.
• Inadequate training of the crew.
• Crew use of drugs or alcohol at sea.
• Faulty or defective nautical equipment.
• Substandard safety devices or procedures.
• Unseaworthiness of the vessel.
Additionally, when maritime workers prevail in such lawsuits, the Jones Act entitles them to broad categories of damages that are unavailable to most land-based employees, including lost future earnings, past and future medical expenses, past and future pain and suffering and permanent impairment damages. The Jones Act allows injured seamen to obtain financial recoveries that are often far greater than would be possible for a land-based worker who had suffered the same injuries.
Thankfully, most incidents at sea don’t involve loss of life. But they can still be devastating. At Berman & Simmons, we have represented seamen in pursuing Jones Act compensation for injuries ranging from loss of fingers to incapacitating spinal injuries that prevent our clients from ever working at sea again. The Jones Act permits recovery for the lifetime loss of earnings caused by an injury, and because maritime jobs often pay relatively high wages, the inability to return to sea-based work often results in large settlements and verdicts.
In order to qualify for Jones Act protection, a worker must be (1) a “seaman”; (2) “in the service of a vessel or group of vessels”; and (3) working within an “employer-employee relationship.”
These legal criteria are far more complex than they sound: Is a worker who spends only a fraction of his work hours at sea a “seaman”? What about the worker who is almost always at sea, but is injured on land? Are non-self-propelling structures such as barges, dredges or oil rigs considered “vessels”? Is the worker who is paid off the books considered an employee?
The answers to these questions are rarely straightforward. For anyone injured while at a job that relates in any way to the water, recovery under the Jones Act may be possible, and prompt consultation with an experienced Jones Act attorney is advisable.
Unfortunately, obstacles often stand in the way of injured seamen obtaining Jones Act compensation even when they meet the technical criteria. Federal courts have held that if an injured seaman is awarded worker’s compensation benefits for a maritime injury, he can be prohibited from pursuing compensation under the Jones Act. Sadly, maritime employers will sometimes usher injured seamen into the workers compensation system, with the aim of stripping away the worker’s right to sue the employer under the Jones Act. An injured worker’s awareness and avoidance of this ploy can result in him or her recovering many times the financial award for the very same injury.
Injured seamen should know their rights. Awareness of the Jones Act’s protections for maritime workers can make all the difference in an injured seaman’s ability to recover and rebuild after a devastating injury.
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