The Jones Act. This is a general introduction to the Jones Act. Please feel free to interrupt me at any time if you have any questions.

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1 The Jones Act This is a general introduction to the Jones Act. Please feel free to interrupt me at any time if you have any questions. The Jones act is legislation that regulates maritime commerce between U.S. cities. The Act required that goods and passengers transported by water between U.S. ports be done in U.S. made ships, owned by U.S. citizens and crewed by U.S. citizens (75%). A similar protectionist law applies in the aviation context where commercial aircraft, flying within the US must be US owned. The Jones Act also provides sailors with additional rights, including the ability to seek damages from the employer in case of injury. Some provisions of the Jones Act are considered to be protectionist in nature as it requires ships to be U.S.-flagged, crewed and owned. This may price ship builders and operating companies out of the international market because the added expense and higher labor costs make companies less competitive. On the other hand these rules ensure the safety of the USA during war time by maintaining a legacy fleet of the US Merchant ships. It also protects seaman and offers causes of action in the event of injury or death. Consequently, the purpose of the law is to support the U.S. maritime industry. Seaman s Remedies- These remedies are available to Jones Act seaman. An injured Jones Act seaman may seek a monetary recovery or remedies either in federal or state court on any or all of the following three causes of action: I. Maintenance, Cure and Wages II. Jones Act negligence III. Unseaworthiness Prior to looking at the remedies available we need to define who these remedies are available to. Who is a seaman? Chandris Test: Employee claiming such statues (Chandris v. Latsis) To qualify as a seaman one must have a connection to a vessel in navigation (an identifiable fleet or vessel) and that connections must be substantial both in duration and nature, Courts reject snapshot approaches, and they do not look merely at what the seaman was doing at the time of injury or during a particular voyage when the injury occurred. They look at the entire employment history with the employer. The so-called 30% Rule states that an employee who spent less than 30% of his time in the service of a vessel in navigation does not qualify as a seaman. But this test is just a rule of thumb and a departure from it may be appropriate, e.g.

2 when the employee s basic work assignments change. (Chandris). Examples of persons who might not qualify as a seaman would be a longshoreman, a harbor worker, a ship builder, or a dockworker whose rights are protected by the Longshore and Harbor Workers Compensation Act (LHWCA). This subject will be explained in more detail by my collogue Michelle Ortero Valdez. We know that to be a seaman you have to have a connection to a vessel in navigation that is substantial in both duration and nature; we also know that substantial duration normally means more than 30% of the worker s time is spent in the service of a vessel in navigation. So now we need to look at what qualifies as a vessel in navigation? What is a vessel in navigation? Congress defines vessel as every description of a watercraft or the artificial contrivance used or capable of being used as a means of transportation on water (1USC SS3). A structure whose purpose or primary business is not navigation or commerce across navigable waters may none the less satisfy the Jones Act s vessel requirement if, at the time of the workers injury the structure was actually engaged in navigation (Digiovanni v. Traylor Bros. Stewart). Vessels undergoing repair or spending a relatively short period of time in dry-dock are still considered to be in navigation whereas ships being transformed through major overhauls or renovation are not. (Chandris) I. Maintenance and Cure - What is Maintenance and Cure? Doctrine of Maintenance and Cure is part of general maritime law and encompasses 3 distinct remedies: 1) maintenance 2) cure and 3) wages. (The Osceola) 1. Maintenance Maintenance is the amount of money to which the seaman is entitled for daily living expenses associated with his recovery (i.e. Room and Board). It is designed to provide seaman with food and lodging comparable to that received aboard a shipthus the obligation to provide maintenance does not arise until the seaman actually leaves the vessel. Maintenance only includes those expenses attributed to the seaman himself and does not encompass the expenses of family members. A prima facie case for maintenance can be made by offering testimony as to the cost of obtaining reasonable accommodation with respect to room/board within the community where the seaman lives. The amount of maintenance must be reasonable and the seaman s employer may offer rebuttal evidence that the proffered maintenance costs are out of line. 2. Cure - Cure is the reasonable medical expenses incurred in the treatment of the seaman s condition. The Seaman (employee) has a Duty to mitigate his damages for instance by going to doctors and treating the condition. Not following doctors instructions could reduce the recovery for his injury because the seaman will be found

3 to have failed to mitigate his damages. Employers will only be obligated to pay those expenses associated with the seaman s treatment that are reasonable and legitimate. The duty ends when the seaman reaches maximum medical cure. Maximum medical cure is reached when the condition will not improve despite further medical treatment (Farrell v. US). The obligation to pay for cure continues as long as the seaman is improving. It does not continue to merely alleviate the symptoms of what is ailing the seaman. There is no obligation to provide treatment that arrests further progress of the condition or which relieves pain after the seaman reaches a point of maximum medical improvement i.e. he is not getting any better. ( Farrell v. US) One covenant to this rule is that even after payment for cure has stopped, the seaman may reinstitute a demand for maintenance and cure where subsequent new curative medical treatments become available. (Farrell v. US) 3. Wages - An Employer must also pay wages that would have been earned during the remainder of the voyage. (Farrell v. US). Double Wages or penalty wages may be awarded when an employer without sufficient cause, fails to pay seaman s wages that are due. (46 USC Sec (c), Double wages are mandatory for each day payment is withheld. This rule applies to all wages due to a seaman not just those triggered by an obligation to pay maintenance and cure. Although failure to pay maintenance and cure may result in the court awarding punitive damages to the seaman. ii. Who is liable? The obligation to provide maintenance and cure payments is imposed on a seaman s employer usually the owner of the vessel on which the seaman works. (Warren v. US) Where a seaman is employed by one who provides contract services to a vessel owner, the vessel owner may also be liable for maintenance and cure under the traditional principles of agency law. Furthermore an action may be brought against the vessel; this is called in rem liability. iii. Maintenance and Cure is Not a Fault-based Remedy. Maintenance and Cure is based on the employment relationship, but the seaman DOES NOT NEED TO prove employer negligence to be entitled to M&C payments. The seaman simply needs to prove that there is an employer/employee relationship between the seaman and that an injury occurred. Furthermore the seaman s own fault or contributory negligence is irrelevant, and the award does not diminish under the comparative fault rule. A seaman may forfeit his ability to recover maintenance and cure only when a seaman s willful misbehavior or deliberate act of indiscretion (Aguilar v. Standard Oil co.) causes his injury.

4 As mentioned previously, punitive damages may be awarded if the employer fails to pay some sort of maintenance and cure. This is why it s always best to pay at least some maintenance and cure since this is something that could seriously hurt the employer s case. iv. Statute of Limitations Most courts apply a 3 year statute of limitations to maritime personal injury claims but some still seek to apply Doctrine of Laches in very particular situations. Jones Act Negligence Jones act negligence is a creature of statute which provides seaman with a negligence-based cause of action against his employer with a right to a trial by jury. The Jones Act in effect incorporates the provisions of the Federal Employer Liability Act, which provides a right of action for injured workers as well as for wrongful death and survival actions. Any Negligence no matter how slight the connection to the injury will be grounds for liability. Once again we have the Chandris test to determine who is a seaman. Just as we discussed earlier, to be a seaman you have to have a connection to a vessel in navigation that is substantial in both duration and nature, we also know that substantial duration normally means that more than 30% of the plaintiff s time is spent in the service of a vessel. And under the Act congress has defined vessel as a structure who s purpose or primary business is navigation across navigable waters OR a structure that was actually engaged in navigation despite not having the primary purpose of navigation under normal circumstances or a vessel that is engaged in doing ships work (McDermott v. Wilander) What is Negligence? There are 4 elements to negligence 1) Duty 2) Breach 3) Causation 4) Damages Negligence defined in the context of the Jones Act is where the defendant, or any of its employees, having a duty of care to the plaintiff, fails to use ordinary and reasonable care under the existing circumstances and the failure causes harm or damages to the Plaintiff. Generally speaking the employer and its employees owe a duty of care to the seaman. What is the Duty? The duty of the employer is to use ordinary and reasonable care under the exiting circumstances. For instance an employer owes a duty to maintain safe equipment, implement adequate safety measures, and select competent master and crew, do inspections, warn of foreseeable dangerous conditions and obstructions. A breach of this duty is a failure to use ordinary and reasonable care under the existing circumstances, for example selecting a crew that was not trained and endangered the life of a seaman causing injury because the crew lacked adequate training.

5 Causation requires that the breach caused the injury. Under the Jones Act causation has a feather weight standard where the foreseeable failure, however slight contributed to the injury of the seaman, either directly or indirectly and led to the injuries suffered. For example if the radio was broken and the crew was not properly warned of dangerous weather conditions approaching the area. And finally the seaman needs to have suffered actual damages as a result of the injuries sustained. These can be proven by showing medical costs and missed time at work, but the law states that if the plaintiff suffers no damages, there can be no viable claim. Once again it needs to be emphasized that negligence under the Jones Act requires a more lenient standard of legal cause. The courts do not require that the negligent act be the sole proximate cause of an injury to result in liability but only that it contributes even in the slightest degree to the injury. Feather weight causation standard applies not only to an employer s liability but to the seaman s comparative negligence. What does it mean when a seaman is found comparatively negligent? If a seaman is found to have contributed to his own injury in some way then the seaman award will be reduced by the percentage that he is found negligent. For instance the jury will attribute a percentage to the negligence of the employer e.g. 70% and negligence of the seaman 30%. In this example, if the amount awarded is $1000, this principle amount will be reduced by the percentage of fault attributed to the seaman. Therefore, in the example given, the seaman would be awarded $700. What Burden of Proof must the Seaman meet to prevail in a negligence claim? In summary the seaman must show by a preponderance of evidence that the employer had a duty (e.g. to provide a safe vessel), that he breached that duty and that the breach of that duty caused the plaintiffs injury and as a result the plaintiff incurred damages. The breach does not have to be exclusively caused by the employer it is sufficient to show that the employer contributed to the breach. Again, the standard for breach and causation is feather light, so generally speaking it is not be difficult to prove that there was some negligence on the part of the employer. Who qualifies as an employer under the Jones Act? The Jones Act conveys to seamen rights against their employers. The burden of proof as to whether there was an employment relationship is on the plaintiff Seaman. Vessel ownership is not a prerequisite. What is important is the right to control the vessel. The Borrowed Servant Doctrine holds that the injured individual may be a crew member, and thus a seaman, even if employed by an independent contractor. When employed by a charterer or concessionaire, the vessel owner is generally not an employer for Jones Act purposes. Formatted: Indent: First line: 0"

6 Calling a seaman an independent contractor does not preclude the seaman from recovering under the Jones Act. The court will consider a number of factors to determine whether an individual is an employee and hence qualifies under the Jones Act or truly an independent contractor and thus not eligible to file a claim under the Jones Act. Factors that will be taken into account by the court when determining employment status: o Control exercised over the detail of work done o The amount of supervision o The power to hire and fire workers o Method of payment o Management and benefits of operation as a whole o The parties understanding of the relationship ( A true joint venture does not fall under the Jones Act) An employer could be a corporate employer in which case the stockholders and agent are not held personally responsible. Even if the seaman owns stock in the employer-corporation, the seaman can still recover under the Jones Act. Who is not covered under the Jones Act? Non USA citizens or residents are not covered under the Jones Act when a remedy is available in an alternative jurisdiction more appropriate to the seaman s claim. Also anyone covered under the Longshoreman and Harbor Workers Compensation Act would not qualify as a seaman and hence would not be eligible for the Jones Act remedies. Examples of seaman unable to recover under the Jones act? An example of a seaman unable to recover under the Jones Act is when a seaman who s own breach of his own duty to maintain a safe ship expressed or implied in his employment contract is the sole cause of his own injury, he cannot recover damages for his injury caused by his breach. This is called the Primary Duty Doctrine and prohibits recovery when it was the seaman s primary duty to maintain a safe ship. Also courts have held that the Jones Act will not grant relief for injury when the seaman lifts something heavy (anything over 51 pounds has been found to be heavy ) without asking assistance when assistance is available and is injured in the course of the heavy lifting. What happens when a violation of a safety statute occurs? When a violation of a safety statute occurs the employer is said to be negligent per se. Negligence per se (FELA) makes the employer liable for any injury caused by a violation of any safety statute irrespective of negligence of the seaman, which means that the comparative

7 element is taken out of the calculation when considering damages award. The seaman needs to prove 5 elements: i. Violation of statute or regulation ii. The plaintiff s membership in a class of intended beneficiaries of the statute or regulation iii. Injury of the type against which the statute or regulation was designed to protect iv. The unexcused nature of the violation v. Causation of the injury The seaman will not be held comparatively negligent if the employer is found negligent per se. This is supported by a STATUTORY BAR ON THE DEFFENCE OF COMPARATIVE NEGLIGANCE WHERE the employer has violated a safety statute. The more difficult question and one that we will not be delving into at this time is what would qualify as a safety statute? Does the injury have to occur at sea? (Situs of injury) Where the plaintiff meets the test for seaman status, the seaman need only show that he was in the course of his employment at the moment of the accident, regardless of whether the injury occurs on territorial waters, the high seas or on land. What are the defenses to a Jones Act action? Seaworthiness Employer could use comparative fault to reduce his liability for damages. What elements need to be proven to maintain a claim based on Unseaworthiness? There are three elements that need to be established for a claim of unseaworthiness to prevail: the plaintiff must show by a preponderance of the evidence that: 1) Plaintiff was a seaman on the defendants vessel (as defined under the Jones Act, or a Sieracki seaman who does not qualify as a seaman under the Jones Act but is not a member that qualifies under the LSHWCA. In these circumstances, certain states still allow so-called Sieracki seamen to recover) 2) That the vessel was unseaworthy and 3) That the unseaworthy condition was a legal cause of the injury sustained by the plaintiff. What is an unseaworthy vessel?

8 A vessel is unseaworthy if it is not reasonably fit for its intended purpose. Unseaworthy vessels are determined as of the time of the accident, not as of the time the vessel left port. Unseaworthiness can result from either temporary or permanent defects in the vessel or her equipment (not an isolated personal negligent act of crew error. Even a temporary and unforeseeable malfunction or failure of the vessel, its hull or physical structure, or of the piece of equipment on the vessel under proper and unexpected use is sufficient to establish unseaworthiness. Furthermore the duty of seaworthiness extends beyond the physical integrity of the vessel and its equipment to such other circumstances, such as, the procedures crew members are instructed to use for assigned tasks. Seaworthiness includes the capacity to carry its intended cargo and could extend to an assault of a crew man by another member of the crew. The owner of the vessel is not required to furnish an accident free vessel or one that will weather every peril of the sea, known or unknown. Instead the vessel must be reasonably suited for its intended purpose, which includes reasonably expected weather. A vessel is not called to have top of the line appliances or equipment or the finest crew, but only such gear as reasonable proper and suitable for its intended use, and a crew that is reasonable competent and adequate. The owner s duty under the law is to provide a seaworthy vessel is absolute and does not depend upon proof of negligence. The owner may not delegate the duty to anyone. If the owner did not provide a seaworthy vessel then no amount of prudence or due care, or lack of knowledge excuses it, whether or not it s known or could have been known of the deficiency. An unseaworthy condition is a legal cause of injury only if it directly and in natural and continu0us sequence produces, and contributes substantially to produce such injury, that it can reasonable be said that, except for the seaworthy condition, the loss, injury or damage would not have occurred. How is the Unseaworthiness claim different from the Jones Act claim? This claim is different from the Jones Act claim in that the negligence has to substantially contribute to the injury. A Jones Act claim for Negligence does not have to be per se substantial. The standard is a slight or featherweight of contributory negligence is sufficient under the Jones Act. How is the Unseaworthiness claim similar to the Jones Act? An unseaworthiness claim still effectively requires the plaintiff to prove all of the elements of a claim of negligence. What are the damages that may be recovered under the Seaworthiness claim? 1) Past and Future reasonable medical expenses 2) Past and Future Lost wages and Earnings power

9 3) Past and Future Pain and suffering and mental anguish 4) Interest on past losses (value of money back then would be greater now) 5) Loss of support. In the event of death of the injured seaman, the plaintiff survivor could claim loss of support if the plaintiff survivor can prove by a preponderance of evidence that plaintiff was receiving support from the decedent (showing of full or partial dependence), had a close relationship with the decedent and was likely to receive support for the foreseeable future. 6) Loss of Service: loss of service that the decedent would have provided to the household but for the seaman s injury Example cleaning services, yard work, repair, and the frequency and length in light of occupation and age. What are the Defenses to a claim based on the Doctrine of Unseaworthiness? The defendant has the burden of proving by a preponderance of evidence that the plaintiff was negligent and that such negligence was a legal cause of plaintiff s damages. Furthermore pre-existing conditions could reduce the damages, such that the defendant is not liable for the pre-existing condition only for the further injury that the defendant caused negligently, but if a separation between the two injuries cannot be made then the defendant is liable for the whole injury. Comparative Negligence: The defense of comparative negligence claim on the part of the plaintiff will not prevent the plaintiff from recovery but will merely mitigate damages based on the percentage of fault. In other words reduce the amount of plaintiff s recovery by the percentage that the plaintiff is found to have been negligent. Example if the seaman s actions are found to be 30% contributing to his accidental fall on a slippery deck for failing to clean up food from the floor that a reasonable prudent person would have done under the circumstances then if he is awarded $100, he would recover $70 because the damages are mitigated by his own negligence. I trust this freewheeling over view of The Jones Act has been helpful. I would be pleased to answer any questions you may have. The End Michael T. Moore is a Board Certified Maritime Lawyer and can be contacted at

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