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

Offshore workers may find themselves assigned to a government vessel or working for a private vessel chartered by the U.S. federal government. 

If you are injured on a U.S. government vessel or while working on a vessel chartered to the U.S. government, do you have a Jones Act claim?

The answer to this question is probably "no," unless you were aboard a private vessel under "time" charter to the U.S. government.  Instead, you probably have a claim under the Suits in Admiralty Act (the "SAA") or the Public Vessels Act (the "PVA").

The Suits in Admiralty Act is the exclusive remedy for maritime tort actions agains the United States where a public vessel is involved.  The Public Vessels Act contains a waiver of sovereign immunity for admiralty torts, but only those committed by or aboard public vessels.  So, if a private vessel is charted to the U.S. government, the Public Vessels Act exception probably does not apply.

Under the Suits in Admiralty Act, an injured offshore worker can recover only to the extent a private party or company would be liable under similar circumstances.  For example, if the boat owner would be liable as a private person for unseaworthiness, then the U.S. government can likewise be liable for unseaworthiness.

In cases where the U.S. hase hired a private vessel, and one of the vessel's employees is injured on the private vessel, the kind of charter or contract the U.S. has with the private company can make a huge difference in the type of claim allowed. 

The U.S can charter a private vessel in different ways.  Basically, there are two well-knowns types of boat charter.  One is a "time" charter and the other is a "demise" charter.  A demise charter is almost like an outright transfer of ownership. 

A time charter, by contrast, is where one party contracts only for specific services which are rendered by the vessel owner's master and crew.  Time charterers assume no liability for the seaworthiness of the vessel, the negligence of the crew, or maintenance and cure.

As a pratical matter, what this means is that a worker injured on a private vessel leased to the U.S. government under a time charter can bring a Jones Act claim against the private company and is not barred or restricted by the Suits in Admiralty Act or Public Vessels Act.  By contrast, if the boat is under a demise charter, then the only remedy is probably a Suits in Admiralty Act claim.

Suing the U.S. government under the Suits in Admiralty Act or Public Vessels Act is extremely complicated and a worker injured under these circumstances should only hire a very experienced Jones Act attorney or maritime attorney.

If you have been injured on a U.S. government vessel or a vessel leased or chartered to the U.S. government, please call the law offices of Vujasinovic & Beckcom, L.L.P. toll free at 877.724.7800 to speak with one of the firm's experienced Jones Act attorneys. 

Also, please be sure to visit the firm's main website at www.vbattorneys.com for more information about the Jones Act, maritime law, the Suits in Admiralty Act, and the Public Vessels Act.

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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 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:
Entitlement to Maintenance and Cure Generally

A seamen's employer is responsible for paying maintenance and cure for an injury or illness that occurs in the course and scope of an injured seaman's employment.  This is a centuries-old obligation and arises from the employment relationship between the injured seaman and his or her employer.  The obligation to pay maintenance and cure arises irrespective of fault or negligence.

A seaman is also entitled to unearned wages from his employer until he or she is fit for duty or they are no longer disabled.

The right to "Maintenance."

Maintenance is designed to compensate an injured seaman for room and board he would have received on the vessel had he or she not been injured.

Generally, maintenance payments range between $15 - $40 per day.  Many lawyers for injured seaman have argued for higher maintenance payments, but courts have not been particularly receptive to this argument.

The obligation to pay maintenance continues until the seaman reaches "maximum medical improvement," which is defined as the point at which all future medical care is "palliative" in nature only.

The right to "Cure."

Cure means medical treatment.  Like maintenance, cure is not dependent on negligence or fault.  A seamen is entitled to cure until he reaches maximum medical improvement.  Injured seamen must mitigate their medical expenses to the extent possible, but the seaman's employer bears the burden to prove that medical expenses are excessive or unreasonable or unnecessary.

The right to "Unearned Wages."

Seamen are entitled to wages they would have earned had they not been injured.  For example, if a seaman is injured at the beginning of his or her work on an offshore mobile drilling rig or a ship, he or she will be entitled to what they would have been paid had the injury not occurred.

The right to maintenance and cure should be resolved in favor of injured seaman.
 
The law on a seaman's entitlement to maintenance and cure is well-settled.  Courts have consistenly held that all doubts or ambiguities with respect to entitlement to maintenance and cure should be resolved in favor of the injured seaman. 

If an employer wrongfully or willfully denies maintenance and cure, they may be required to pay an injured seaman's attorney fees for obtaining maintenance and cure.

Conclusion.

Injured seaman are entitled to maintenance, cure, and unearned wages regardless of fault or negligence if they are injured or contract an illness while in the service of a ship.  However, some employers refuse to provide maintenance, cure, and unearned wages.  This is unfortunate but all too common.

Like any maritime dispute, an injured seaman should consider consulting an experienced maritime lawyer if his or her employer wrongfully refuses to live up to their maintenance, cure, and unearned wages.

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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 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.


1.  The Jones Act was enacted in 1920 to remove a bar to negligence suits by seaman.  The Act itself does not define "seaman," but the general backdrop of maritime demonstrates that "seaman" was and is a term of art under general maritime law.  Unlike sea-based workers, land-based workers injured offshore are covered by the Longhsore & Harbor Worker's Compensation Act (the "LWHCA").  The LWHCA excludes from coverage the "master or member of the crew of any vessel."  The Jones Act and LWHCA work together--one provides coverage for "seaman," and the other for land-based worekrs.

2.  The LHWCA did not define “vessel” when enacted, but §§1 and 3 of the Revised Statutes of 1873 specified that, in any Act passed after February 25, 1871, “ ‘vessel’ includes every description of water-craft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” The LHWCA is such an Act. Section 3’s definition has remained virtually unchanged to the present and continues to supply the default definition of “vessel” throughout the U.S. Code. Section 3 merely codified the meaning “vessel” had acquired in general maritime law. In fact, prior to the passage of the Jones Act and the LHWCA, this Court and lower courts had treated dredges as vessels. By the time those Acts became law in the 1920’s, it was settled that §3 defined “vessel” for their purposes, and that a structure’s status as a vessel under §3 depended on whether the structure was an instrument of naval transportation. See Ellis v. United States, 206 U.S. 246, 259. Then as now, dredges served a waterborne transportation function: In performing their work they carried machinery, equipment, and a crew over water. This Court has continued to treat §3 as defining “vessel” in the LHWCA and to construe §3 consistently with general maritime law. Norton v. Warner Co., 321 U.S. 565. Pp. 6—10.

3. Previous cases made a sensible distinction between watercraft temporarily stationed in a particular location and those permanently anchored to shore or the ocean floor. A watercraft is not capable of being used for maritime transport in any meaningful sense if it has been permanently moored or otherwise rendered practically incapable of transportation or movement. By including special-purpose vessels like dredges, the act is broad, but other prerequisites to qualifying for seaman status under the Jones Act provide some limits.   For example, a worker seeking such status must prove that his duties contributed to the vessel’s function or mission and that his connection to the vessel was substantial in nature and duration.

4.  The First Circuit held that the Super Scoop is not a “vessel” because its primary purpose is not navigation or commerce and because it was not in actual transit at the time of Stewart’s injury. Neither prong of that test is consistent with §3’s text or general maritime law’s established meaning of “vessel.” Section 3 requires only that a watercraft be “used, or capable of being used, as a means of transportation on water,” not that it be used primarily for that purpose. The Super Scoop was not only “capable of being used” to transport equipment and passengers over water–it was so used. Similarly, requiring a watercraft to be in motion to qualify as a vessel under §3 is the sort of “snapshot” test rejected in Chandris.    That a vessel must be “in navigation,” means not that a structure’s locomotion at any given moment matters, but that structures may lose their character as vessels if withdrawn from the water for an extended period. The “in navigation” requirement is thus relevant to whether a craft is “used, or capable of being used,” for naval transportation.    The inquiry whether a craft is “used, or capable of being used,” for maritime transportation may involve factual issues for a jury, but here no relevant facts were in dispute. Dutra conceded that the Super Scoop was only temporarily stationary while the scow was being repaired; it had not been taken out of service, permanently anchored, or otherwise rendered practically incapable of maritime transport. Finally, Dutra conceded that the Super Scoop is a “vessel” under §905(b), which imposes LHWCA liability on vessel owners for negligence to longshoremen.

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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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