Maritime Injury Lawyer & Attorney : Vujasinovic & Beckcom : Jones Act : Serving Texas, Louisiana, Mississippi

Last week, a Houston Federal District Court jury returned a 1.2 million dollar verdict against New York based Penn Maritime in a Jones Act injury case.

The Jones Act seaman was injured while working on a Penn Maritime barge.  While cleaning the bulkhead, he slipped on a defective stool and injured his back and neck.  He brought claims for maintenance and cure, negligence, and unseaworthiness against Penn Maritime.

Penn Maritime denied all the allegations, refused to pay maintenance and cure, and claimed that the injured Jones Act seaman essentially made up the incident, even though he reported it immediately in accordance with all company policies and procedures.

Penn  Maritime did not offer a reasonable settlement, so the injured Jones Act seaman was forced to trial.

After a five day trial, the jury rejected Penn Martime's defenses and issued a 1.2 million dollar verdict, finding Penn Maritime 50% responsible for the incident.  The jury awarded full maintenance and cure as well as significant pain and suffering and economic damages.

The case was handled by Kurt Arnold, Jason Itkin, and Brian Beckcom.  To learn more about this case, please contact Kurt Arnold or Jason Itkin at Arnold & Itkin or Brian Beckcom at Vujasinovic & Beckcom, toll free 877.724.7800.

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    If you are injured offshore and qualify as a Jones Act seaman (you can read more about the Jones Act and Jones Act seaman status in other entries on this website), some employers will treat you honestly and fairly, provide independent medical advice and care, ensure that you recover from your injuries before requiring you to come back to work, and provide you and your family with appropriate payments while you recover from your injuries. 

    However, sometimes Jones Act employers will try to "trick" you into believing things about your case and your situation that simply aren't true, or are extremely misleading.  Almost every single Jones Act employer will have lawyers and insurance adjusters ready to provide them with advice.  Sometimes, they will attempt to get you to do takes actions that hurt your case and before you have the benefit of independent legal advice. 

    The following are some common tricks used by offshore employers that you should be aware of and that should cause "red flags" to come up:

1.  Injured Jones Act workers ARE NOT required to give a recorded statement. 

     The Jones Act does not require injured seamen to give a recorded statement to the employer or its insurance representatives.  While you should certainly report the accident immediately and in compliance with company procedures, you are simply not required to give a recorded statement.  If your employer or its insurance representatives tell you that you are required to give a recorded statement, you should be very suspicious.  In fact, the employer may try to get you to say things that may hurt your case later on.  And once it's recorded, you will have a lot of trouble later on if you were tricked into saying things you didn't mean. 

    Bottom line:  Be very careful about giving any recorded statement before you get independent legal advice.

2.  Injured Jones Act seamen ARE NOT required to sign any paperwork in exchange for getting medical benefits or maintenance payments. 

    Recently, some Jones Act employers have started requiring, or strongly suggesting, that injured seamen sign papers before they get medical benefits, maintenance, or "advances" on their personal injury settlements.  This is NOT required under the Jones Act.  And it is almost always a big mistake to sign such paperwork before consulting with independent, non-company affiliated lawyers. 

    Why is this a big mistake?  Because Jones Act employers often bury arbitration clauses or other language in this paperwork, and some courts have actually been enforcing these arbitrations clauses or waivers.  What does it mean to sign and be bound by an arbitration clause?  It means you may be forever giving up your right to a trial in Court, and instead, you may be agreeing to have your case heard by an arbitrator in a venue that is hand-picked by your employer.  Almost always a bad idea.

    If your employer requires you to sign paperwork after you're injured, you should STRONGLY consider having the paperwork reviewed by an independent, non-company affiliated lawyer to make absolutely sure you are not giving up important legal rights.

3.  Injured Jones Act seamen ARE NOT required to see company doctors. 

    Contrary to popular opinion, if you are injured offshore, you are not required to see only company-selected doctors.  You should pick a doctor who you like, with whom you are comfortable, and who treats you fairly and appropriately.   Unfortunately, some company-affiliated medical providers will try to force you back to work before you are ready, and will avoid performing tests that reveal the true extent of any possible injury.  Bottom line here is that you are allowed to select your own doctors.  If your Jones Act employer says you are required to go to company-selected doctors only, they are wrong.

4.  Injured Jones Act seamen ARE entitled to medical benefits and maintenance regardless of fault

    If you are injured offshore and qualify as a Jones Act seaman, you are entitled to medical benefits and maintenance (so-called "maintenance and cure") regardless of who was at fault.  Unless you were injured off the job, or you intentionally caused your own injuries, your Jones Act employer must pay maintenance and cure until you reach maximum medical improvement.  If your Jones Act employer tells you the injury was "your fault," or wasn't the fault of the employer, and therefore they are not required to pay your medical benefits and maintenance while you recover, they are wrong on this as well, and you should seek independent legal advice immediately to ensure that you get appropriate medical treatment.

5.  Injured Jones Act seamen ARE entitled to bring claims for negligence and unseaworthiness against their employer if they were injured due to the employer's fault or negligence

    Injured Jones Act seamen are entitled to maintenance and cure regardless of fault.  in addition to no-fault maintenance and cure, injured Jones Act seamen can bring negligence claims and unseaworthiness claims against their employer if the employer's fault caused the injuries, if the vessel or rig was "unseaworthy," or if the employer otherwise caused or even contributed to the injuries. 

    If you can prove negligence or unseaworthiness, you may be entitled to future medical care beyond maximum medical improvement, lost wages both past and future, and pain and suffering and mental anguish damages.  But in these situations, you must prove fault, unlike maintenance and cure, which is no-fault.

    Some Jones Act or maritime employers may tell you that maintenance and cure is all you get.  Don't listen to this nonsense.  If there is negligence or fault, the law says you have a right to bring a negligence or unseaworthiness cause of action under the Jones Act, if you are a seaman.

    Conclusion

    The five issues above are just a few examples of commonly misunderstood legal issues arising in Jones Act injury cases.  There are many more common tactics and misunderstandings that are listed above.  I will continue to update this website with more examples as appropriate, so make sure to check back often for updates on these and other important Jones Act and maritime law topics.

    In the meantime, trust your own common sense.  If you are a Jones Act seaman and are injured offshore, and something just doesn't "smell right," it probably isn't.  If you see red flags or something happens that causes you to be suspicious, you should strongly consider getting a free consultation from an experienced Jones Act attorney.  Most competent Jones Act attorneys will give you a no-charge free consultation and let you know whether your Jones Act employer is trying to trick you or not.  When things don't "seem right," they usually aren't.  Trust your gut.

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A Jones Act claim will always be governed by federal substantive law.  Most, if not all, general maritime claims will also be governed by federal substantive law.

However, an injured Jones Act seaman or maritime worker may be able to file his claim in state court.  When you first speak with your lawyer, you should ask him to tell you whether you should file your claim in a federal or state court, and why.  A good Jones Act lawyer or maritime lawyer should be able to tell you immediately where you should file your claim and tell you why as well.  If the lawyer can't tell you immediately, considering going elsewhere for legal help.

What are some of the considerations when deciding where to file your Jones Act injury claim or maritime injury claim?  Since federal law will apply, where you file the case will depend on procedural issues and pragmatic onces as well.

From a procedural standpoint, you may be able to get more pre-suit discovery in state court.  Many federal courts limit the amount of pre-suit discovery you can conduct severely.  Discovery is a good way to get at the truth of what caused the maritime injury, so consider state court if the discovery rules are more expansive.

A pragmatic consideration is whether the state court options provide a more people-friendly venue that federal court.  In Texas, for example, an injured Jones Act seaman can file his injury claims where he resided at the time of the claim.  In other words, the injured Jones Act seaman can file close to home, presumably where his family lives and where his doctors are located. 

Also, voir dire in federal court is generally more limited.  For some reason, federal judges like to conduct their own voir dire and limit voir dire from the lawyers ("voir dire" is the process of selecting a jury).  If you want more input into the jury selection process, you should almost always file a Jones Act injury claim or a maritime injury claim in state court.

There are many other considerations when deciding where to bring a Jones Act injury claim or a maritime injury claim.  A good lawyer will be able to walk you through these decisions and explain why you should file in a particular venue.

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Some confusion exists regarding the status of marine construction workers under the Jones Act.  A recent  Sixth Circuit opinion may offer some clarity to the topic and confirm that in most instances, marine construction workers do qualify as Jones Act seamen.  The case is styled Arnold v. Luedtke, 2006 WL 2220978 (6th Cir. 8/4/2006).

The plaintiff began work in February 2002.  He served as the foreman of a seawall construction project.  The project required him to work in four phases.  During the first two phases, he captained a tugboat and worked aboard a large derrick boat for extended periods of time.  He was hurt during the third phase of the project, which had him working alone carrying very heavy steel plates from the beach to the top of the seawall and then onto a pontoon raft.   The district court found that he was not a seaman during the third phase and the raft was not a vessel.

The Sixth Circuit disagreed on both points.  It rejected the "snapshot" test that the U.S Supreme Court rejected in the Chandris case.  It also held that the raft was a vessel as a matter of law.  However, the court stated that some of the questions remained jury issues, amely whether his work aboard the raft was substantial in duration and nature.

The Sixth Circuit's opinion is perfectly consistent with Supreme Court precedent and corrects an obvious error by the trial court.  It also clarifies that marine construction workers don't walk in and out of Jones Act seamen status depending on the particular work they are doing when injured.

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Injured seamen are entitled to maintenance, cure and unearned wages.  However, some Jones Act employers refuse to pay maintenance, cure and/or unearned wages.

Injured seamen can bring claims beyond the traditional worker's compensation remedies.  Specifically, injured seamen are entitled to payment for related medical treatment, payment of compensation during their period of disability, and payment of unearned wages.  In addition to these worker's compensation-type remedies, injured seamen can also bring negligence claims and unseaworthiness claims against their employer.

The rest of this post explains the entitlement to maintenance and cure and unearned wages in more detail:

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Injured seamen and offshore workers often ask me to explain their possible remedies under the Jones Act and to explain the Jones Act to them. 

The Jones Act is really a pretty straightforward set of rules first passed by Congress is 1920 and known as The Merchant Marine Act of 1920.  The statute itself is short.  Although the statute is short and can be read in less than 5 minutes, like ship that's been in the water a long time, the Jones Act has a lot of barnacles in the form of Court opinions that interpret it's provision.

With that in mind, here's a simple explanation of the Jones Act.

The Jones Act requires, first, that U.S.-flagged vessels be built in the United States, owned by U.S. citizens, and documented under the laws of the United States. Documented means "registered, enrolled, or licensed under the laws of the United States."  In addition, all officers and 75% of the crew must be U.S. citizens. Vessels that satisfy these requirements comprise the "Jones Act fleet".
The Jones Act restricts the carriage of goods between United States ports to United States flagged vessels.

Second, and more important to injured maritime workers, the Jones Act also allows injured sailors to obtain damages from their employers for the negligence of the shipowner, the captain, or fellow members of the crew.  It operates simply, by extending similar legislation already in place that allowed for recoveries by railroad workers and providing that this legislation also applies to sailors.

The language that gives injured seaman the right to recover damages for injuries suffered offshore is only one paragraph long:

"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right to trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply. . . ."

An injured seamen has three legal remedies. The first is the right to "maintenance and cure," the second is under the Jones Act, and the third is under the doctrine of unseaworthiness. A simple analogy which, while not completely accurate, provides an easy way to distinguish between the three remedies is this: Maintenance (living expenses during recovery) and cure (medical care) is like workers' compensation. A shipowner is required to provide maintenance and cure regardless of whether or not it was negligent in causing the seaman's injuries. The Jones Act is essentially a negligence cause of action. If the shipowner isn't negligent, it has no liability to the seaman under the Jones Act. Unseaworthiness is like products liability law--if the ship or any of its appliances are defective, the seaman can sue the shipowner if he is injured due to the defect.

The Jones Act entitles injured sailors to recover past and future wage losses, medical care, and pain and suffering--elements of damages which are generally unavailable under maintenance and cure. Under maintenance and cure the shipowner is only required to provide medical care until the seaman reaches maximum medical cure, after which the duty comes to an end.

The Jones Act should not be confused with the Longshoremen's and Harbor Workers' Compensation Act, which is a Federal statute that defines the workers' compensation rights of dockside employees whose work affects shipping upon navigable waters. The Death on the High Seas Act governs remedies for the surviving kin of sailors who die on the job.

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A district court recently found that a winch attached to a dock is not part of a ship such that a defect in the winch could be considered a part of the ship for unseaworthiness purposes.

The decision is O'Donnell v. Jean McCausland, L.L.C., 2005 U.S. Dist. 29202, No. 04-cv-175-PB (D.N.H., November 17, 2005.

This decision makes sense.  The shipowner owes a duty to provide a seaworthy ship and equipment to seamen aboard the vessel.  It does not owe such a duty with respect to dock-based equipment, at least according to this recent decision.

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The San Antonio Court of Appeals recently issued a unanimous opinion affirming a $1,585,000.00 jury verdict in a Jones Act case.  The opinion is styled Weeks Marine, Inc. v. Salinas.

Salinas worked for Weeks Marine, a dredging company, as a mate.  He worked on the M/V BTD II, a dredge boat.  While the dredge was in a repair facility in Houma, Louisiana, Salinas injured his back.  He was hurt while lifting two 45 pound batteries.  He was required to carry these batteries from the yard across two gangways.   He was hurt as he stepped from one of the gangways.

The jury found that Salinas was a Jones Act seaman, that Weeks Marine was negligent, that the M/V BTD II was unseaworthy, and issued a verdict of $1,585,000.00, which the trial court reduced to $1,109,500.00.

Weeks Marine appealed.  It claimed that Salinas was not a Jones Act seaman, that the vessel wasn't unseaworthy, and that the evidence of future economic loss was insufficient to support the jury's findings. 

The Court rejected all of Weeks' appellate points, and rightfully so.  Perhaps more importantly, the Court of Appeals also reinstated part of the jury's verdict that the trial court had reduced based on Salinas' contributory negligence.  The Court reasoned that Weeks Marine never requested an additional instruction "inquiring about whether despite the unseaworthy condition, Salinas was contributorily negligence with regard to the injuries he suffered as a result of the unseaworthy condition."  In other words, Weeks Marine waived its contributory negligence defense.

This opinion is a straightforward discussion of seaman status, Jones Act negligence, and unseaworthiness, and re-affirms the legal standards in Jones Act and unseaworthiness claims, as well as the evidence sufficient to support such findings.

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If you are someone you know is injured offshore or near a navigable body of water, there may be a legal claim for damages under the Jones Act, General Maritime Law, the Longshore & Harbor Worker's Compensation Act (LWCHA), or other state or federal laws.  However, the procedural and substantive law governing maritime legal claims is very different from the law governing onshore injuries.

You need to be sure you don't run aground during your legal voyage.  Here are five helpful tips for workers with offshore injury claims.

1.  If you are considering hiring a lawyer, the very first thing you should do is ensure your lawyer has experience handling maritime injury or Jones Act claims.  Simply put, most lawyers don't handle these claims on a regular basis.  If you were having heart problems, you wouldn't seek help from a knee doctor, would you?  Of course not.  You'd find a heart doctor.  The same is true of lawyers.  If you have a maritime claim, you should talk to a maritime lawyer, not a tax lawyer or estate lawyer or other lawyer who doesn't regularly handle maritime injury claims.

2.  You need to know that the law governing maritime injury and Jones Act cases is entirely different than land-based claims.  The location of the worksite and the nature of the work being performed may have a substantial impact on the types of claims you can bring.  An experienced maritime lawyer should be able to tell you what laws govern your case.   Don't rely on your brother's uncle 's cousin who got in a truck wreck to tell you what your case is worth.  Jones Act and maritime injury claims are simply different than other types of claims.

3.  If you are injured offshore, DO NOT assume that you'll be covered by worker's compensation insurance.  In fact, many offshore injuries are NOT covered by worker's compensation insurance.  Even though you may not get worker's compensation coverage, however, if you're a Jones Act seaman, or a Longshoreman, you may get medical bills paid and wage replacement under the Jones Act or the Longshore & Harbor Worker's Compensation Act.  Although different legal rules govern these claims, they are similar to worker's compensation statutes in some respects. 

4.  If you're injured offshore and are covered under the Jones Act, you will likely get more legal remedies than other injured workers.  For instance, you have a claim for maintenance and cure (see the post on maintenance and cure on this website), Jones Act "negligence," and unseaworthiness (see related posts below).  You may also have third-party negligence clams under General Maritime Law if someone other than your employer was at fault. 

5.  Although you should report your injury as soon as possible, it's generally NOT a good idea to give written or recorded statements to company agents or officials until you've obtained legal help.  The reason is because the company's agents or insurance representatives may try to trick you into saying something that hurts your case.  It is much easier to avoid this problem upfront than try to explain it later on during your legal proceedings.  The companies all have experienced lawyers advising them on their rights--you should too.

For more information about the Jones Act and maritime law, see the related posts in this website, below.  Or call 877-724-7800 for a free initial consultation.

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The Jones Act covers "seamen" injured on vessels of all kinds, including mobile offshore drilling rigs.

There are many kinds of mobile offshore drilling rigs, including jack-up rigs, mobile offshore drilling units (or "MODUs"), semi-submersibles, spar platforms, lay barges, and drill ships.

Many Courts have found that these so-called "special purpose vessels" (or "SPVs") are vessel for Jones Act purposes.  However, a worker injured aboard a mobile drilling rig still needs to pass the test set forth it the United States Supreme Court's Chandris decision, which requires, generally, a connection to a vessel or identifiable fleet of vessels that is substantial in terms of both duration and nature, and the worker must contribute to the mission or function of the vessel.

As in most cases, whether an injured worker is a "seaman" for Jones Act purposes will depend on the particular facts of the offshore workers' accident and the nature of his or her employment.

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In a wonderful victory for Jones Act seaman and injured maritime workers generally, last year, the United States Supreme Court decide Stewart v. Dutra, a case involving whether an injured dredge worker was a Jones Act "seaman" and whether the dredge he was on was a "vessel" for Jones Act purposes.

The case is a must-read for all maritime attorneys and is recommended for Jones Act seaman and maritime workers generally.

The U.S. Supreme Court decided, essentially, that anything "practically capable" of moving across the water, whether it does so or not, is a "vessel" for Jones Act purposes.

You can find the case by clicking here.

I've also set forth some of the more important parts of the case below.

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As the gambling industry continues to expand, so does the use of gambling boats.  If a worker is assigned to a gambling boat and is injured in the course of his or her employment, they are typically treated as Jones Act seamen regardless of their duties on the particular vessel.

This is true on gambling or casino boats that occasionally cruise away from the shore.  It may not be true if the gambling boat is permanently affixed shoreside. 

Many states allow gambling boats to work while permanently moored, with no intention of taking them out onto the water.  Under the U.S. Supreme Court's decision in Stewart v. Dutra, the status of workers on permanetly moored gambling boats is unclear.

Two courts have reached apparently opposite conclusions regarding the status of workers on permanently moored gambling boats for Jones Act purposes.  Those cases are Earls v. Belterra Resort, 439 F.Supp.2d 884 (S.D.Ind. 2006) (holding such workers are not Jones Act seaman because the permanently moored boat was not a "vessel") and Booten v. Argosy Gaming Co., 848 N.E. 2d 141 (Ill. App. 4/18/2006). 

The bottom line in gambling boat cases is that, like much of Jones Act and maritime law, the question can only be answered by a careful analysis of the facts and circumstances of each case.

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