- September 27, 2017
- Posted by: thinkjcw
- Category: Blog
A seaman who becomes injured or ill in the course and scope of his employment is entitled to certain benefits and may be entitled to recover for damages from his employer in certain situations.
The only common element in the benefits and claims we will be discussing is that the injured or ill employee qualifies as a “seaman”. The legal definition of a seaman is an individual who is more or less permanently assigned to a vessel of fleet of vessels in navigation and commerce and contributes to the commerce of that vessel. There are some borderline cases and exceptions to the definition.
Maintenance and Cure
An injured or ill seaman is entitled to recover is what termed “maintenance and cure” benefits. This claim is completely separate and independent from both the Jones Act and the Unseaworthiness claims, which will be covered later.
Maintenance and cure is the policy of providing to a seaman who disabled by injury or illness while in the service of the vessel the reasonable cost of medical treatment and transportation to and from medical vendors, and the means of maintaining himself during the period of his recovery.
Generally speaking, in order to recover maintenance and cure, and employee only need to show that he suffered an injury or illness while in the service of the vessel on which he was employed as a seaman, without willful misbehavior on his part. The injury or illness does not need to be work related as long as the condition arises while in the service of the vessel. Whether or not the employer was responsible for the condition does not matter.
The amount of maintenance and cure cannot be reduced because of any negligence on the seaman’s part.
The “cure” to which a seaman may be entitled includes the cost of medical attention, including the services of physicians and nurses as well as the cost of hospitalization, medicines and medical apparatus.
“Maintenance” is defined as the equivalent cost of the food and lodging received aboard the vessel, and the facilities. However, a seaman is not entitled to maintenance for that period of time that he is an inpatient in any hospital because the cure provided by the employer through hospitalization includes the food and lodging of the seaman. There are also cases where a seaman residing with his parents or guardians is not entitled to maintenance.
With regard to the period of time covered by the claim, an injured or ill seaman is entitled to receive maintenance and cure from the date he leaves the vessel until he reaches the point of “maximum medical improvement” under the circumstances; that is, the point at which no further improvement in his medical condition is to be reasonably expected. The obligation usually ends when the treating physician says he has reached the point of maximum medical improvement.
An employer is not obligated to pay maintenance and cure to a seaman just because the claims an injury or illness on the vessel. The employer has a right to contest the claim in good faith and with reasonable diligence.
When an employer properly investigates a maintenance and cure claim and, with some reasonable grounds, refuses to pay maintenance or provide cure to a seaman up to the time that he receives maximum cure, and the court then holds that he was actually entitled to these benefits, the law provides certain remedies. Any maintenance and cure benefits due would have to be paid. If the failure to pay resulted in an aggravation of the seaman’s injury, then the seaman may recover those damages and necessary expenses he can prove he sustained. This would include damages for prolongation or aggravation of the seaman’s injury, additional pain and suffering and any additional medical expenses incurred as a result of the failure to pay. It would also include a reasonable sum to compensate his attorney for services furnished in obtaining maintenance and cure benefits for the seaman.
A seaman is not entitled to maintenance and cure if: (1) he intentionally concealed a prior medical condition or injury; (2) the concealed medical facts were material to the employer’s decision to hire the seaman; and (3) there is a connection between the concealed injury or condition and the injury complained of in the seaman’s suit. McCorpen v. Central States Gulf S.S. Corp., 396 F.2d 547, 548-49 (5th Cir. 1968).
It is important to remember that a seaman cannot recover attorney fees for the prosecution of either his Jones Act or his unseaworthiness claims, but only for the prosecution of the maintenance and cure claim, if warranted.
Maintenance and cure payments which an employer is legally liable to pay are recoverable under the P&I policy.
M&C Punitive Damages
If an employer arbitrarily and capriciously denies maintenance and cure benefits, the courts allow punitive damages to punish the employer so that he will not engage in such actions in the future and to wa4rn others that such behavior will not be tolerated. An employer acts “arbitrarily and capriciously” when he acts without reason, or with callous disregard for the claim of the seaman, or fails to properly investigate a seaman’s claim for maintenance and cure benefits before denying these benefits.
In order to award punitive damages to a seaman for the failure of the vessel owner to provide maintenance and cure, it must be shown:
1) That seaman was entitled to maintenance and cure;
2) That maintenance and cure was not provided;
3) That the employer willfully and arbitrarily failed to provide cure up to the time that the seaman reached maximum cure.
4) That such failures resulted in injury to the seaman.
The amount of punitive damage awards is established by the judge or jury. The amounts are normally large enough to affect the employer and let the company now it is being punished.
Normally, punitive damages are not recoverable under the P&I policy. In many instances, there is an endorsement in the policy to this effect. There are some cases which have held that, as the purpose of these awards is to punish the employer, the insurance company is not required to respond.
A seaman who is unable to work due to an injury or illness which arises in the course and scope of his employment is entitled under General Maritime Law to receive his unearned wages until the end of his articles, voyage, or pay period. This claim is separate and in addition to any maintenance to which he may be entitled. Normally, the company will p ay earned wages through the date of injury on a normal payroll check. A separate check for unearned wags is issued using the bank account though which maintenance and cure benefits are paid. The payment for unearned wages becomes part of the claim under the P&I policy.
The Jones Act is part of the Federal Employers Liability Act which provides a remedy to any seaman who suffers personal injuries in the course of his employment due to the negligence of his employer, or the employer’s officers, agents of other employees. The right of action afforded by the Jones Act is available only to an employee who qualifies under the definition of a seaman. A seaman with a claim under the Jones Act is entitled to a trial by jury if he so desires (rather than a trial by a judge).
In order to recover on a claim under the Jones Act, an employee must establish each of the following elements by a “preponderance of the evidence”. This means the “weight of the evidence” after considering all of the testimony, rather than “beyond reasonable doubt”, which is the standard in a criminal trial. He must show that:
1) At the time of your injury, he was acting in the course of his employment as a member of the crew of a vessel or fleet of vessels in commercial navigation.
2) The employer was “negligent”, as claimed.
3) And that the negligence established was a “legal cause” of damage sustained by him.
A seaman is injured “in the course of hi employment” when, at the time of the injury, he was doing the work of his employer, that is, he was working in the service of the vessel as a member of the crew.
On of the terms it is necessary to understand before we go on is the meaning of the word “negligence”. Negligence is the failure to use reasonable care under the circumstances. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonable careful person would not do under like circumstances, or in failing to do something that a reasonably careful person would do under like circumstances.
For purposes of the Jones Act, negligence is a “legal cause” of damage if it played any part, not matter how small, in brining about or actually causing the injury or damage. So, if a judge or jury found from the evidence in the case that any negligence of the employer or co-workers contributed in any way toward any injury or damage to the seaman, even through that negligence operated in combination other factors, like actions of persons not related to the company, a natural cause or some other cause, (if the other cause occurred at the same time as the negligence), and if the negligence played any part, no matter how small, in causing the damage, they would find the company liable. In simpler terms, a seaman must prove “slight negligence” on the part of his employer in order to establish liability.
When a seaman files a Jones Act suit, the employer could contend that he was negligent and that such negligence was a legal cause of his injury. This is a defensive claim for contributory negligence and the burden of proving that claim, by a preponderance of the evidence, is on the company. The company would have to show that:
1) The injured seaman was also “negligent”; and
2) That this negligence was a “legal cause” of the accident or injury
If a court or jury found in favor of the employer on this defense, it would not prevent recovery by the plaintiff. It would only reduce the amount of his recovery. In other words, if the accident was partly his fault and his own accident, this would not prevent him from recovering; the Court would just reduce the total damages by the percentage that he is at fault.
Another claim a seaman may have is for “unseaworthiness” of the vessel. This is a legal term and does not necessarily mean that the vessel is in danger of sinking or cannot safely navigate. In order to prove an unseaworthiness claim, the seaman must establish each of the following elements, again, by a preponderance of the evidence:
1) That the vessel was unseaworthy, and
2) That the unseaworthy condition was a legal cause of damage to him.
A claim of unseaworthiness is a claim that the owner of a vessel has not fulfilled his legal duty to members of the crew to provide a vessel reasonably fit for its intended purpose. The duty to provide a seaworthy vessel extends not only to the vessel itself, but to all of its parts, equipment and gear; and also includes the responsibility of assigning an adequate and competent crew.
The lack of non-skid pant or other traction materials on walking paths and work areas, missing machinery guards, rails, poor housekeeping, tripping hazards left on waling paths or work areas by other employees, and even a co-worker who had a history of violence or mental problems that the employer know or should have known of about have been the basis for findings of unseaworthiness. Generally, if there is a deficiency in the equipment or a tool failure which is a substantial cause of the injury, there will be a problem with this issue.
The owner’s duty under the law to provide a seaworthy vessel is absolute. The owner may not delegate the duty to anyone. If he does not provide a seaworthy vessel then no amount of due care or prudence excuses him, whether he knew or could have known of the deficiency.
Unlike the Jones Act claim, where the plaintiff may recover if the alleged negligence is proved to play any part (no matter how small) in causing the injury, in order to prove an unseaworthiness claim a seaman must show that the unseaworthy condition was a substantial cause of the injury complained of.
An unseaworthy condition is a “legal cause” of damage only if it is directly and in a natural and continuous sequence produces, or contributes substantially to producing the damage, so it can reasonably be said that, except for the unseaworthy condition, the loss, injury or damage would not have occurred. Unseaworthiness may be a legal cause of damage even though it operates in combination with the act of another, some natural causes, or some other causes if such other cause occurs at the time as the unseaworthiness and if the unseaworthiness contributes substantially to producing the damage.
Contributory negligence is also a defense to a claim of unseaworthiness, since we have already explained to the meaning and effect of a finding of contributory negligence on the part of the seaman, we are not going to do it again, except to reiterate that the company has the burden of establishing this defense by a preponderance of the evidence and it only acts to reduce the award; it would not mean that the seaman would get nothing.
A seaman may also be entitled to punitive damages if he proves that there was willful and wanton misconduct by the vessel owner resulting in the creation or maintenance of an unseaworthy condition which resulted in injury or illness, or wanton and willful misconduct which reflects a reckless disregard for the safety of the crew. The nature and purpose of punitive damages has already been explained.
Loss of Society
There are come recent cases which hold that the spouses of children of an injured seaman do not have a separate claim. This issue is still being contested and clarified. However, the general guideline prior to these rulings did allow for a claim from the spouse. In current settlement proceedings, we still secure the spouse’s signature and use language to release these claims as a precautionary measure.
The spouse and/or children of a seaman whose nonfatal injuries are attributable to the unseaworthiness of a vessel may have a General Maritime Law cause of action for loss of his society. Society is defined as a broad range of mutual benefits each family member receives from the others continued existence, including love, affection, care, attention, companionship, comfort and protection. With regards to a husband and wife it includes the conjugal friendship and sexual relations.
If a seaman proved negligence or Unseaworthiness on the part of the employer which was a legal cause of damage to him, he would be entitled to an amount of money that would fairly and adequately compensate him, including any damages he can be reasonably certain to experience in the future.
- A) Past, present and future injury, pain, mental anguish, disability, disfigurement and/or the loss of capacity for enjoyment of life.
- B) Medical expenses; past, present and future.
- C) Lost earning, lost time, lost earning capacity in the future.
The legal remedies available to seamen who are injured in the course of employment. The articles have covered the duties a vessel owner owes to crewmembers and a seaman’s rights under the warranty of unseaworthiness. This column covers the duties a seaman owes to himself.
A seaman is obligated under the Jones Act to work with ordinary prudence under the circumstances. The circumstances of a seaman’s employment include not only his reliance on the employer to provide a safe work environment but also his own experience, training, and education. To hold otherwise would unjustly reward unreasonable conduct and would fault seamen only for gross negligence, which was not the intent of Congress when it adopted the Jones Act. The reasonable person standard under a Jones Act negligence action is determined by answering the question: What would a reasonable seaman do in like circumstances? If a seaman becomes injured because he failed to act in a reasonable manner, he is guilty of comparative negligence and, in most cases, his recovery will be reduced by the percentage of his own fault.
Many jurisdictions apply the so-called “primary duty rule” Under the rule, a seaman may not recover from his employer for injuries caused by the seaman’s failure to perform a duty imposed on him by his employment. However, the primary duty rule does not apply when a seaman is injured by a dangerous condition that he did not create and, in the proper exercise of his employment duties, could not have controlled or eliminated. The rule applies only to a knowing violation of a duty that is consciously assumed as a term of employment.
Although a seaman never “assumes the risk” of an accident while working aboard a vessel, he does assume the risks of his “calling.” These are the unavoidable risks that go along with the occupation. Such risks may include storms, heavy seas, wet decks, etc. A vessel owner has the right to expect that a seaman is capable of dealing with ordinary hazards that prevail even on a seaworthy vessel. There is no duty to warn of dangers that are obvious to the seaman through the use of ordinary senses. If a seaman is injured as a result of one of the normal hazards of his occupation, then the seaman incurs the loss himself.