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

The United States Supreme Court issued its long-awaited decision in the Exxon Valdez oil spill case.



You can read the Court's opinion by clicking here.

Once again siding with big business over the rights of individuals and families, the Court sliced down the punitive damage award from $2.5 billion dollars to $500 million dollars.

Setting aside the fact that $500 million represents less than one day of profit for Exxon Mobil, and the fact that the Court basically just made up a number out of thin air, and the fact that the punitive damage award, while large, is a drop in the bucket for Exxon, the Court once again shows a disturbing lack of confidence in the ability of American citizens to serve on juries, listen to evidence, and reach decisions.

Essentially, 8 lawyers from Washington D.C., most of whom have never actually tried a lawsuit themselves, and none of whom has any real idea what the Valdez spill did to thousands of Alaskan families and citizens, have once again substituted their judgment for the jurors and judges who actually heard the evidence in the case and reached a decision. 

The silver lining

The silver lining in the case is that the justices, perhaps unwittingly, seem to have recognized that punitive damages are recoverable in maritime law. 

For decades, most lawyers who represent Jones Act seaman and injured maritime workers have been under the impression that punitive damages were most likely not available in these types of cases.

What this has meant, as a practical matter, is that maritime defendants could treat the injured workers as poorly as they wanted, be as unsafe as they wanted, and avoid any sort of responsibility or threat of punitive damages.

The Exxon Valdez case seems to take away that defense.  Which is very helpful for injured workers, and, suprisingly from this Court, not quite as helpful to big business and insurance companies.

What do you think about the Exxon Valdez case?  Did the Court get it right?  Or should the Court defer to the jurors who actually heard the evidence and rendered a verdict?

Want to know more about maritime injury cases? 

We strive to provide the best, most professional, and most effective representation to workers in the offshore industry.  We are based in Houston, Texas.  We represent offshore workers all over the world.

To learn more about our law firm and what we can do for you, please visit the following websites:

www.vbattorneys.com

www.maritimeaccidentattorney.com

www.houstoninjuryaccidentlaw.com

If you want to know more about offshore injury claims, please take a moment to read the following articles:

1.  How to hire the best lawyer for your Jones Act or offshore injury case

2.  What is the Jones Act?

3.  What is a Longshoreman and What Are Their Legal Rights When Injured?

4.  The difference between the Jones Act and the Longshore & Harbor Worker's Compensation Act

5.  The Truth About Offshore Injury Claims.

6.  What Should You Do If You Are Injured Offshore

7.  What you should know if you were hurt offshore and your employer is giving you a hard time

8.  Should I give my employer or the insurance company a "recorded statement?"

9.  Do I need to hire a lawyer for my Jones Act or offshore injury claim?

10.  What happens when you file a Jones Act lawsuit.

11.  6 Critical Things you must know if you are injured at sea

12. The Secrets Your Employer May Not Want You To Know If You Are Injured Offshore.

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Before the Death on the High Seas Act, U.S. Courts did not provide any remedy for wrongful death occuring on the high seas under General Maritime Law. 

Realizing how unfair this was, Congress passed the Death on the High Seas Act (DOSHA).  DOSHA applies to seafarers and passengers.  It provides a statutory wrongful death action and provides remedies for the personal representative of the decedent.

The U.S. Supereme Court, in a series of complex opinions, has held essentially that if the DOSHA controls, the courts were not free to supplement DOSHA's damages with common law damages.  And the Court extended those holdings to Jones Act seaman's death cases, holding that the parents of a deceased Jones Act seaman could not recover loss of society damages because the Jones Act has been interpreted as allowing only pecuniary losses.  (See Miles v. Apex Marine Corp., 498 U.S. 19 (1990).

So in cases where DOSHA applies, wrongful death damages are limited to "pecuniary losses" suffered by surviving family members (although in Jones Act cases, the deceased seaman's personal injury claim survives to his estate).

Also, state wrongful death laws cannot supplement or provide more damages when DOSHA applies.  (See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986).

So, what damages are recoverable under DOSHA?

DOSHA allows for "loss of support" damages.  That means survivors can recover the financial contributions the deceased would have made had he (or she) lived.

To recover loss of support, the family must show some sort of dependence or expectation of support. 

The total amount of support is not the decedent's future income.  You have to take out the portions of the future income the decedent would have consumed himself (or herself), reduce the totals to present value, and take out taxes.

Spouses are generally able to get loss of financial support over the decedent's work life.  Children can get support to the age of majority but only in special exceptions can children recover support damages after they reach majority.  For instance, in some cases, children may be able to recover for the cost of a college education.

Loss of inheritence may also be a legitimate recovery under DOSHA.

Loss of services (for example, services around the house like lawn care and maintenance of family vehicles) may be another item of recovery.  But to recover these damages, one must put on evidence of the reasonable value of these services.

Loss of nuture and guidance a parent would give to their children is also a legitimate pecuniary loss under DOSHA. 

Finally, funeral expenses are a legitimate pecuniary loss under DOSHA.

Spouses are generally able to get loss of financial support over the decedent's work life.  Children can get support to the age of majority but only in special exceptions can children recover support damages after they reach majority.  For instance, in some cases, children may be able to recover for the cost of a college education.

Loss of inheritence may also be a legitimate recovery under DOSHA.

Loss of services (for example, services around the house like lawn care and maintenance of family vehicles) may be another item of recovery.  But to recover these damages, one must put on evidence of the reasonable value of these services.

Loss of nuture and guidance a parent would give to their children is also a legitimate pecuniary loss under DOSHA. 

Finally, funeral expenses are a legitimate pecuniary loss under DOSHA.


For more information about the Jones Act or General Maritime Law, please contact Brian Beckcom at 713.224.7800, or toll free at 877.724.7800, or visit one of the firm's websites:

www.vbattorneys.com
www.themaritimelawyer.com
www.maritimeaccidentattorney.com

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About the firm

Vujasinovic & Beckcom, P.L.L.C. is a firm of board certified personal injury trial lawyers who handle serious injury and death cases, as well as business and insurance cases, on a contingency fee basis.  The firm has a substantial docket of Jones Act and maritime injury cases.

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Jones Act Cases in Texas State Court After HB 1602

Brian Beckcom
Vujasinovic & Beckcom, L.L.P.
1001 Texas Avenue, Suite 1020
Houston, Texas 77002
(713) 224-7800
Brian@vbattorneys.com
www.vbattorneys.com

I.    Introduction

    On May 24, 2007, a sea change occurred in Texas state court Jones Act cases.  On that day, Governor Rick Perry signed HB 1602.   HB 1602 dramatically alters the special venue statute that applies to Texas Jones Act seamen. 

    Before HB 1602, Jones Act seamen and FELA railroad workers who lived in Texas when they were injured were allowed to file their FELA or Jones Act lawsuits in the county where they “resided” when they were injured.   The advantages for injured seamen and railroad workers were many, including local juries, local doctors, the ability to stay close the their family during trial, and the many other advantages inherent in local venues.

     HB 1602 modifies the venue options for Jones Act seamen and eliminates the home county option is some cases.  Before filing a Jones Act personal injury lawsuit, the prudent practitioner will be well advised to study HB 1602 and consider all the various venue options before filing a Jones Act lawsuit.  This paper summarizes and analyzes the changes HB 1602 brings to Jones Act cases in Texas state courts. 

A.    HB 1602 - Background

    The impetus behind HB 1602 was a perceived increase in Jones Act filings in four South Texas counties against dredging companies, in particular two out-of-state dredge companies, Great Lakes and Weeks Marine.  The dredge companies, with the backing of the anti-civil justice group Texans for Lawsuit Reform, attempted at first to eliminate the home county as a venue option for all Texas-based Jones Act seamen and FELA railroad workers.  The original version of the bill would have forced the vast majority of Texas-resident Jones Act seamen and FELA railroad workers to file suit in their employers’ home county.

    Recognizing the unfairness of the original bill, HB 1602 represents a compromise reached after many months of negotiation.  HB 1602 makes Harris County and Galveston County permissible venues for some out-of-state Jones Act cases, regardless of where the plaintiff lived in when he or she was injured.  HB 1602 provides special venue protections for dredge companies.  It allows the dredge companies to hire workers from South Texas (and other Texas counties) but prevents the dredge companies from being sued in those counties. 

    Finally, the venue option for FELA railroad workers was left untouched.

II.  HB 1602 Analysis

A.    FELA railroad workers

    Before HB 1602, FELA railroad workers and Jones Act seaman were treated the same for venue purposes.  The precursor to HB 1602 would have treated FELA railroad workers and Jones Act seamen the same by repealing CPRC 15.018 (the special venue statute) in its entirety.  The modified final version, HB 1602, carves out FELA railroad workers and separates them from Jones Act seamen.  As a result, FELA workers can still file in their home county, as well as the county where the incident occurred or the county where the defendant maintains its principal place of business in Texas.

    In summary, FELA railroad workers are unaffected by the modified, passed version of HB 1602.

B.    Jones Act – Non-dredge workers

    HB 1602 applies only to lawsuits filed under the Jones Act.  It contains a general venue rule then engrafts special venue rules for certain kinds of Jones Act cases, based on the type of work being performed by the injured employee or the locale of the injury.

    (i)    HB 1602 – General Venue Provision for Jones Act   cases  
  
     Under the general venue provisions of HB 1602, injured Jones Act seamen have two venue options from which to choose:
   
    (1) the county where the defendant’s principal office is located in the state;     or
   
    (2) the county where the plaintiff resided at the time the cause of action accrued.
   
    Under the general Jones Act venue statute, for example, an offshore oil rig worker who qualifies as a Jones Act seaman, injured in the Gulf of Mexico, can file in his home county or in the defendant’s home county in Texas.  A sailor injured on the high seas can also still file in his home county, or in the defendant’s home county if the defendant maintains a principal office in Texas.
   
    (ii)    Jones Act – Texas-based inland injuries and dredge worker injuries
   
    The Jones Act venue options are different for inland injuries, onshore injuries, or dredge worker injuries in Texas.  If all or a substantial part of the events or omissions giving rise to the claim occurred in Texas inland waters, onshore in Texas, or during the course of an “erosion response project in Texas,” there are two venue options:
   
    (1)    file in the county in which all or a substantial part of the events giving rise to the claim occurred; or
   
    (2)    file in the defendant’s principal office in the state.

    As a result of this first exception, a dredge worker injured in the Port of Houston must file in Harris County or in the county where the employer’s principal office in Texas is located.  A Jones Act seaman injured in transit to his job can file in the county where he was injured, or in the county where the employer’s principal office in Texas is located.
 
    (iii)    Jones Act – Out-of-state inland injuries and dredge  worker injuries occurring outside of Texas
   
    There is yet another exception for injuries occurring inland outside of Texas, shore-based injuries occuring outside of Texas, or dredging-type injuries in “Gulf Coast” states.
   
    If the injury occurs in any inland waters anywhere other than Texas, or onshore or during an erosion response project in a “Gulf Coast state,” then the injured Jones Act seamen has four venue options:
   
    (1)    the defendant’s principal office in the state if such office is in a  “coastal county”;
   
    (2)    Harris County (Houston) if the plaintiff lived anywhere other than Galveston when the cause of action accrued;
   
    (3)    Galveston unless the plaintiff lived in Harris County; or
   
    (4)    if the defendant does not have a principal office in a Texas coastal county, then where the plaintiff lived when the cause of action accrued.

    “Gulf Coast” states are defined as Texas, Louisiana, Alabama, Mississippi, and Florida. A “Coastal county” is defined as a county having a U.S. Customs port through which waterborne freight is transported.  “Coastal erosion project” and “erosion response project” are also defined.  Basically, erosion projects are dredging projects.

    As a result of this exception, a Dallas-based Texas resident injured on the Mississippi river could file in Harris or Galveston county, in the employer’s home county in Texas if one exists along the coast, or if not, in Dallas.  A Galveston-based Texas resident under the same facts loses the Harris County option.  Houston-based Texas residents lose the Galveston option.

C.    HB 1602 – Practical effects

    In addition to adding to the complexity of the venue analysis in Jones Act cases, perhaps the most dramatic change resulting from HB 1602 is the likely increase in Jones Act filings in Harris and Galveston state courts.

    Both Harris and Galveston counties are now viable venues for out-of-state injuries that occur in inland waters or ashore or during Gulf Coast dredging projects.  Formerly, a worker injured outside of Texas under these circumstances could file in their home county.  That option has been eliminated. 

    As a natural result of the changes in Jones Act venue options, expect to see increased Jones Act filings in Harris and Galveston state courts.  

    The other significant effect of HB 1602 is to Jones Act seamen injured in Texas waterways or doing dredging work in Texas.  Essentially, workers injured in Texas waterways or on a Texas dredging project, regardless of where they lived when injured, will lose the option of filing suit where they lived when injured.

    For example, a dredge worker injured while performing dredging work in the Port of Houston who lived in El Paso when he was injured will be required to file his suit in Harris County or where the dredging company has its principal office in Texas (assuming the company has a principal office in Texas). 

    As a practical matter, this will force some dredge workers to travel long distances for their lawsuit and will increase the costs of litigation to both the employee and employer.
     
    For more on this and other Jones Act and maritime law topics, please review this website or visit the firm's main website at www.vbattorneys.com.

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The answer to this question after the U.S. Supreme Court's decision in Stewart v. Dutra, 543 U.S. 481 (2005) and the Fifth Circuit's decision in Holmes v. Atlantic Sounding Co., 437 F.3d 441 (5th Cir. 2006) is almost certainly yes. 

    But if the lawyer representing the injured person isn't familiar with these case or hasn't handled Jones Act cases on a regular basis, then the injured Jones Act seaman or spar worker runs the risk of losing this issue and losing substantial and valuable Jones Act rights and remedies.

    To recover under the Jones Act, an injured person must establish that he is a Jones Act seaman.  To be a Jones Act seaman, the injured person must prove that his duties "contribute to the function of the vessel or to the accomplishment of its mission.  See Chandris, Inc. v. Latsis, 515 U.S. 347, 359 (1995).  Second, the injured person must have a connection to a vessel or fleet of vessels that is substantial in terms of its duration and nature.  Id.

    After Stewart v. Dutra Construction Co., 543 U.S. 481, the Fifth Circuit adopted the definition of "vessel" set forth in Title 1, United States Code, Section 3 for all Jones Act claims.  That provision defines "vessel" as any watercraft "practically capable of maritime transportation, regardless of its primary purpose or state of transit at a particular moment."  This makes the Fifth Circuit's definition of "vessel" extremely broad for Jones Act purposes.

    In the Holmes case, the Fifth Circuit was tasked with determining if a quarterbarge was a vessel.  The Fifth Circuit had previously decided, 16 years earlier, that a quarterbarge was not a Jones Act vessel.  In Homes, the court reversed that ruling. 

    Most spars possess a number of objective vessel criteria.  For instance, most spars have a hull, specific displacement, decks, crew quarters.  Most spars float in navigable waters.  The Coast Guard regulates most spars, and often requires that certain job positions be licensed.  Most spars are towed to location or are able to move themselves.  And most spars are not permanently affixed to one spot in the water.  They are mobile.

    In summary, most spars should qualify as Jones Act vessels after Steward v. Dutra and Homes v. Atlantic Sounding.

    To learn more about the Jones Act and maritime law injury claims, please review the rest of this website or visit our main website at www.vbattorneys.com.  Or call for a free consultation with one of the firm's founding partners.

     

   

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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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