Wednesday, May 31, 2017

Jones Act Claim vs. Maritime Injury Claim

Jones Act Claim vs. Maritime Injury Claim

      The Jones Act is a comprehensive federal law passed by Congress in 1920 to protect United States ships and shipping interests from foreign competition. Among its many provisions, the Jones Act creates special rights for injured seamen.
      Title 46 of U.S. Code §30104 of the Jones Act is the provision which allows an injured seaman to bring a civil action against his employer if the seaman was acting within the courseand scope of his employment as a crewmember. If a seaman is injured as a result of the negligence of his employer the employer faces liability for the seaman’s injuries. In contrast, under state workers’ compensation schemes employees are generally prohibited from bringing lawsuits against employers for injuries caused by employer negligence.
     Who is eligible to file a Jones Act claim? Only a “seaman.” Under the statute, a “seaman” is defined as an employee whose duties contribute to the function of a vessel in navigation or accomplishment of its mission, and the employee’s connection to the vessel must be substantial. For example, if you were hired by a freighter owner to be ship’s engineer for an island cruise and you were injured aboard the freighter, you would qualify as a seaman. However, if you were the employee of an electronics firm that installed an electronics package on the freighter while it was in port you would not be qualify.
     Another unique feature of the Jones Act is that it allows for comparative negligence, which means that your own negligence will merely reduce your damage award proportionately. For example, many state laws prohibit an injured person from recovering against another if his or her own negligence was a partial cause of the injury. In a Jones Act claim however, if your negligence was determined to be 60 percent responsible for the cause of action accident and your employer is found to be 40 percent at fault, you may still recover 40 percent of your damages against your employer.
     There is a common misconception that “maintenance and cure” is somehow connected to a Jones Act claim. “Maintenance and cure” however is a completely separate right from a Jones Act claim. “Maintenance and cure” guarantees injured seamen receive medical care, treatment and support during convalescence. Seamen are entitled to maintenance payments until they have reached the point of maximum recovery. In order to be entitled to maintenance and cure, a seaman must only prove his injury occurred while employed on a vessel and was not caused by willful misbehavior.
     Unseaworthiness is yet another type of maritime injury claim. Unseaworthiness however is not a statutorily created remedy, but is a common law right to damages which arises when an unseaworthy condition on the vessel causes injuries. Unseaworthiness claims are not just available to seamen, but are also available to passengers as well. For example, if an injury occurs to a seaman or passenger as a result of poorly maintained or worn out equipment there is likely an unseaworthiness claim available.
     Regardless of the specific type of maritime claim, the basic process to be followed should be: 

1) Report any Injury no matter how insignificant if you there is any chance you might miss work to the captain or supervisor as soon as possible. If you don’t, you risk employers and more importantly insurers, assuming you were not really hurt.

2) You will be asked to fill out an accident report by your company Unless you are on medication or not capable of accurately filling out the report go ahead and do so, but don’t be afraid to tell your employer you are not able to do so. In the report section that asks who was at fault, if you do not specify the company was at fault, you will have a problem pursuing a Jones Act claim later. At worst, if you hope to be re-hired you should at least specify you are not sure who was at fault.
3) If you have significant injuries, you may be asked to give a statement to an insurer. Do your
best to avoid giving any such statement, at least until you decide if your injuries are significant enough to where you will need to hire a lawyer.

4) Get medical treatment as soon as possible. If you cannot obtain adequate medical treatment aboard the vessel, the ship should consult with a physician by phone or radio, and helicopter you out if need be. If you are in a foreign port you must be given proper medical treatment and sent home if necessary.

5) Do not miss doctor’s appointments and make sure you follow all of the doctor’s orders, and make sure not to miss any appointments. Don’t be surprised if you find out an insurance investigator is following you around taking pictures and videos trying to show you are doing something inconsistent with your doctor’s orders

6) Decide whether you need to hire a lawyer. As a general rule, you have no choice but to hire a lawyer if you have a Jones Act case, or if your maintenance and cure is not being paid, or if you can’t get medical treatment, or if your injuries are more than $15-20,000.