Personal injury claims related to seafaring -with special emphasis on German and US jurisdictions-

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1 Personal injury claims related to seafaring -with special emphasis on German and US jurisdictions- Diplomarbeit zur Erlangung des Grades eines Diplom-Wirtschaftsingenieur für Seeverkehr (FH) an der Hochschule Bremen Fachbereich Nautik und Internationale Wirtschaft Studiengang Nautik vorgelegt von: Anke Wiedau Matrikel Nr.: aus: Theodor-Storm-Str Bremen Tel: Referent: Korreferent: Prof. Kapt. P. Irminger Kapt. C. Schröder Bremen,

2 Summary SUMMARY... I LIST OF DIAGRAMS... IV LIST OF ANNEXES... V.-LIST OF ABBREVIATIONS... VI DEFINITIONS... VII 1. INTRODUCTION ORGANISATIONAL STRUCTURE OF P&I CLUBS Necessity of P&I Clubs P&I Coverage Liabilities in respect of the seamen Liabilities in respect of Supernumeraries Liabilities in respect of Passengers Liabilities in respect of Third Parties Claim ranking First steps after a personal injury PERSONAL INJURY Reasons for personal injuries Crew Illness Medical screening STATISTICAL VIEW Location of personal injuries Rank of injured persons CONSEQUENCES OF PERSONAL INJURIES Consequences for the Seafarer Consequences for the Shipowner COMPENSATION AND REPATRIATION I

3 6.1 The International Transport Worker s Federation (ITF) contract Medical Attention Sick pay Loss of Life, Death in Service Disability Repatriation The Philippines Overseas Employment Administration (POEA) contract Section 19 Repatriation Section 20 Compensation and Benefits Compensation and Benefits for Death Compensation and Benefits for injury or illness The contract of a German Shipping Company (for a Nautical Officer) The German Seaman Code Comparison Case A: Repatriation The Costs NEGLIGENCE The US approach to negligence The American Civil Court system The power of the jury Damages The German approach to negligence Compensational functions Satisfactory function Degree of guilt The German court system Damages APPLICABLE LAW The Jones Act Wrongful death DOHSA Death on the High Seas Act Athens Convention The Montreal Convention Personal claims by other persons The Longshore and Harbor Worker s Compensation Act (LHWCA) CLAIMING IN THE US II

4 10. EXAMPLES FOR PERSONAL INJURY CASES AND CLAIMS Case C: A broken line Case D: Accidental Death The Andersen Case The Sosa Case CONCLUSION ANNEX 1 ITF COMPENSATION SCALE ANNEX 2 POEA COMPENSATION SCALE ANNEX 3 GERMAN COMPENSATION SCHEDULE ANNEX 4 ATHENS CONVENTION SIGNATORIES ANNEX 5 MONTREAL CONVENTION SIGNATORIES ANNEX 6 EXAMPLES FOR LOW, MEDIUM AND HIGH COMPENSATION AWARDS BY GERMAN COURTS BIBLIOGRAPHY CONTRACTS, LAWS, ACTS, CONVENTIONS LIST OF DIALOG PARTNERS III

5 List of diagrams Diagram 1: Claim Ranking Diagram 2: The Hit List Diagram 3: Crew injury distributed by incident of location (UK P&I 1992) Diagram 4: Location of person at time of injury (Seacare ) Diagram 5: Accepted claims by location on the ship (Seacare ) Diagram 6: Accidents to crew by location on vessel (MAIB 2003) Diagram 7: Injured persons distributed by location on board (BSU 2003) Diagram 8: Killed persons distributed by location (BSU 2003) Diagram 9: Claims distributed by occupational grouping (Seacare ) Diagram 10: Injuries distributed by occupational grouping (MAIB 2003) IV

6 List of Annexes Annex 1 ITF Compensation Scale Annex 2 POEA Compensation Scale Annex 3 German Compensation Schedule Annex 4 Athens Convention Signatories Annex 5 Montreal Convention Signatories Annex 6 Examples for low, medium and high compensation awards by German courts V

7 List of Abbreviations BSU Cf DOHSA IMF ITF LHWCA MAIB MV P&I POEA SDR SeeBG UK US Bundesstelle für Seeunfalluntersuchung Confer, Compare Death on the High Seas Act International Monetary Fund International Transportation Worker s Federation Longshore Harbor Worker s Compensation Act Marine Accident Investigation Branch Motor Vessel Protection and Indemnity Philippine Overseas Employment Administration Special Drawing Rights See Berufsgenossenschaft United Kingdom United States of America VI

8 Definitions (according to the North of England P&I Club Rules) Entered Ship: Supernumerary Passenger Seaman A ship which has been entered for insurance in this class of Association. A relative of a Seaman, or any other person whom a Member has agreed to maintain or carry on board an Entered Ship (except Passenger) and including persons engaged under articles of agreement for nominal pay. A person carried on board an Entered Ship pursuant to passage contract. A person (including the Master) engaged under articles of agreement or otherwise contractually obliged to serve on board an Entered Ship (except persons engaged only for nominal pay) including a substitute for such person and also including such persons while proceeding to or from such ship. VII

9 1. Introduction Being at sea does not only mean being away from home, family and friends for a long period of time, it does also mean being away from doctors and hospitals while the ship is sailing. Of course there are also ships that have doctors on board, i.e. cruse liners, but most common sea-going vessels do not have a doctor. A doctor is only required for ships with more than 75 persons on board going on international trade, as well as ships on coastal trade, with a journey duration of more than 3 days and more than 100 employees on board. 1 Each Nautical Officer has a certain medical training he went through when studying, but if it this knowledge is never or only rarely needed most of it is forgotten soon. If asked, the majority of Nautical Officers will probably admit that they hope to never get into any situation when real medical assistance is needed and the ship is days away from the next port. Being at sea means you are not able to call an ambulance or go to the doctor. What people take for granted ashore does not apply to seamen. However, accidents happen, seamen get injured when working on their ship, sometimes even before boarding; on their way to their ship. They get injured when going ashore. Just the same as shore workers, who come aboard to handle the cargo, might be injured while working onboard. Passengers, Pilots and visitors can be potential victims, too. But how are these injuries covered? Who takes care of the medical costs? Who makes sure the injured person gets adequate compensation for their pain and suffering? What if the accident (or even the death) of a person was caused by negligence? Is it possible for the seaman to go to court and try to get a higher compensation than he would get without suing? What if the injured person stays disabled due to the accident? It seems that even though modern ships have a high safety standard accidents cannot be wholly avoided. The smallest carelessness can lead to an accident just the same as improper working gear or unsafe working conditions on board. 1 Cf: 15, March 31 st,2005 1

10 There are numerous possibilities for accidents to happen, and they do. More and more seamen who were personally injured try to get a higher compensation than the one that is granted in their contract. The UK P&I Club states that The shipping industry is paying out more than $ 300 million a year to meet seafarers claims for injury, illness and death. 2 This shows the great extent of personal injury claims that are related to seafaring. 2 Quote from UK P&I Club handout, received through Mr. Macke from Pandi Services Hamburg 2

11 2. Organisational structure of P&I Clubs Most P&I Clubs are non-profit organisations (in the form of a Mutual), which are run for the benefit of their members. The members pay sufficient premiums and if required, additional calls to cover for expenses of the Club. In return, the member might get a refund or pay a lower premium when the money was more than sufficient to pay all the Club s costs. Each Club member is at the same time insured and insurer and has influence on the organisation by voting at the Club s General Meetings. These Meeting take place at least once a year, but may also be held several times a year, depending on necessity and Club s statutes. During these meetings the Club members vote a Broad of directors (which mostly consists of Committee and Executive Committee) and consists of the members itself. The Board of Directors will delegate parts of its powers to the administration or management of the Club who works full time on the day-to-day business of the Club. 3 Additionally the Club has correspondents in all major ports of the world to assists the Club locally, when problems arise. The Committee s most important tasks are deciding about the premium ratings, the scope of cover, closing open policy years and establishing principles for the management of the funds. The Executive Committee handles all the matters that are not covered by the Committee, such as approving claim compensations, engaging and dismissing personnel, managing the Association s funds and supervising the administration or management of the Club Necessity of P&I Clubs The first mutual protection Club, the Shipowners Mutual Protection Society was founded in Other protection societies were founded, but these Clubs did not provide indemnity cover until in 1874 the first indemnity Club was founded and the protection societies amended their rules, so that they would also cover indemnity. Through these amendments, the Clubs thereby became P&I Clubs. 5 3 Quote from: Gold, E.: Gard Handbook on P&I insurance, 5 th edition, 2002, page Cf: Gold, E.: Gard Handbook on P&I insurance, 5 th edition, 2002, page 98ff 5 Cf: Gold, E.: Gard Handbook on P&I insurance, 5 th edition, 2002, page 66f 3

12 If a personal injury occurs on board, the ship-owner will have to pay for all expenses that occur related to this accident. He has the legal obligation to make sure, the sick or injured person gets medical care and if necessary will be taken to a hospital and brought home when he is able to travel again. Depending on the contract, he might also have to pay for any medical expenses that build up in the persons home country. The ship-owner will have to pay all cost that arise from the person s injury or death. Since these costs can reach very high sums, ship-owners are insured through P&I Clubs. They will pay back all costs - less an agreed deductible - to the ship-owner. P&I Clubs inter alia cover medical costs that arise from sickness, injury or death. Furthermore, they pay for repatriation costs, substitution costs, sick wages, compensation costs and funeral costs. These costs may reach a very high sum, and might be a great burden to a single P&I Club. To compensate these costs the International Group of P&I Clubs was established in Although P&I Clubs maintain their independence, autonomy and competitiveness they [ ] cooperate [ ] as members 6. The purpose of this group is that costs that exceed a certain amount will not have to be covered by the insuring P&I Club but will be distributed to all Clubs. There are currently 13 P&I Clubs who are members of the International Group. This group provides liability insurance for more than 90 per cent of the world s shipowners P&I Coverage Personal injury claims represent the second most expensive class of claims paid by P&I Clubs. The risks that are covered for personal injuries are liabilities in respect of the seamen, liabilities in respect of passengers and liabilities in respect of third parties. The rules of P&I Clubs concerning these liabilities are quite similar in wording and I will therefore take the important parts of the North of England P&I Club Rules 2004/2005 as an example to show what is covered. 6 Cf: Gold, E.: Gard Handbook on P&I insurance, 5 th edition, 2002, page 71 7 Quote from: Gold, E.: Gard Handbook on P&I insurance, 5 th edition, 2002, page 71 4

13 Unless otherwise agreed 8 between the Member and the manager, the Member shall be indemnified by the Association against the following liabilities Liabilities in respect of the seamen 10 (a) Liabilities to pay damages or compensation for death, personal injury or illness of any Seaman of an Entered Ship and hospital, medical, funeral and other expenses necessarily incurred in relation to such death, personal injury or illness. (c) Statutory liabilities to pay compensation to any Seaman of an Entered Ship caused in consequence of the actual or constructive total loss of the ship. (d) Repatriation and substitution expenses necessarily incurred as a consequence of death, personal injury, illness or desertion of any Seaman of an Entered Ship. [ ] (f) Where a Seaman has suffered injury whilst on leave, any cover which would otherwise be extended by this Rule shall arise only under the Entry of the last vessel on which the Seaman served prior to suffering the injury Liabilities in respect of Supernumeraries 12 Liabilities, costs and expenses in respect of Supernumeraries carried on an Entered Ship as if such persons were Seamen and covered under Rule 19(1) These are standard rules of the P&I Club, but it is also possible that a Member likes to vary the rules in compliance with the Managers. It is possible to get a lower coverage for less money as well as extensive coverage for a higher amount of money. 9 Quote from North of England P&I Club Rules , page Cf: Rule 19(1) of North of England P&I Club Rules 2004/2005, page Cf: Rule 19(1) of North of England P&I Club Rules 2004/2005, page 23f 12 Cf: Rule 19(2) of North of England P&I Club Rules 2004/2005, page Cf: Rule 19(2) of North of England P&I Club Rules 2004/2005, page 24 5

14 2.2.3 Liabilities in respect of Passengers 14 (a) Liabilities to pay damages for death, personal injury or illness of any Passenger on an Entered Ship. (c) Liabilities to pay damages or compensation to any Passenger on board the Entered Ship arising as a consequence of a casualty to that Ship, including the cost of forwarding such Passenger to destination or return to port of embarkation and of maintenance of such Passenger ashore. For the purposes of this Rule 19(3)(c) a casualty involving either: (i) collision, stranding, explosion, fire or any other cause affecting the physical condition of the vessel so as to render it incapable of safe navigation to its intended navigation to its intended destination; or (ii) a threat to the life, health or safety of passenger. Provided Always That in Rule 19(3): (A) the Association shall assume no liability in any case in respect of death, personal injury, [ ] by reason of carriage by air except where such liability occurs: (i) during the repatriation by air of injured and sick Passengers or of Passengers following a casualty to the Entered Ship as defined in Rule 19(3)(c) above, or (ii) during shore excursions from the Entered Ship but always subject to the Proviso (B) below; (B) the Association shall assume no liability in any case in respect of the contractual liability of a Member for death or injury to a Passenger whilst ashore on an excursion from the Entered Ship in circumstances where either: (i) a separate contract has been entered into by the Passenger for the excursion, whether or not with the Member, or 14 Cf: Rule 19(3) of North of England P&I Club Rules 2004/2005, page 24 6

15 (ii) the Member has waived any or all of his rights of recourse against any subcontractor or other third party in respect of the excursion; (C) the ticket of passage shall relieve the Member of liability, costs and expenses to the maximum extent permitted under the appropriate law. [ ] Liabilities in respect of Third Parties 16 Liabilities to pay damages or compensation for death, personal injury or illness of any person (other than those specified in Rules 19(1), (2) and (3)). [ ] Claim ranking The majority of claims are caused by crew members, which is logical if we consider the number of crew members worldwide plus the fact that crew members spend significantly more time aboard than any other person who might file a claim. The duration of time spend aboard obviously brings along a higher risk of being injured or getting sick while being on board. Another fact is, that crew members are exposed to certain risks when working on board. Bad weather conditions can lead to dangerous situations, but there are also certain work tasks on board that contain a risk. Another reason for the high number of claims by crew members is that many crew members heard about the enormous sums that can be reached by suing in the US and find it very tempting to at least try to get a similar compensation for their personal injury. The second important category is passenger claims. Individual injuries lead to claims against ship-owners. Although passenger claims are only the second category when it comes to claims it is the category with the highest risk. The sums that will have to be paid if something goes badly wrong on any of the big cruise ships would be horrendous. 15 Cf: Rule 19(3) of North of England P&I Club Rules 2004/2005, page 24f 16 Cf: Rule 19(4) of North of England P&I Club Rules 2004/2005, page Cf: Rule 19(4) of North of England P&I Club Rules 2004/2005, page 25f 7

16 The fact that more and more younger people spend their holidays on cruise liners has led to a decrease of injuries and therefore the number of claims by passengers fell. On the other hand the value of these claims rose. The last part of injury claims is caused by third parties, which are persons carried on board, people working on board while the ship is in port, people visiting or persons who live in vicinity of ports. The biggest part of those third party claims is taken by stevedore or longshoremen claims in the United States. 18 The following diagram is taken from a claim analysis statistic from the UK P&I Club, and although the statistic is from 1992 it shows, that more than 10 years later there is nearly no difference in the distribution of the different types of claims. Still crew injury and crew illness account for the majority of claims, as well as the highest value of claims. Diagram 1: Claim Ranking Source: 2.4 First steps after a personal injury To avoid any claims or to be prepared if the injured person files a claim against the shipowner, the steps following a personal injury are very important. Of course the most important point is to take care of the sick or injured person first. If the person did not have an accident, but is sick it is important to keep a detailed 18 Cf:http://www.gard.no/portal/page?_pageid=33,132064&_dad=gard&_schema=PORTAL&p_url=http %3A//www.gard.no/gard/Publications/GardNews/RecentIssues/gn158/art_3.htm&MainMenuID=5&Sub MenuID=40, March 21 st,

17 medical record and to write down when (date and time) the first signs of sickness occurred. A medical record book should be kept at any time, so that all symptoms can be written down and the medical condition of the patient can be described. All drugs that the person already takes for whatever illness he has should be written down, as well as all drugs that he gets while being aboard. When a doctor is contacted this should be noted, just like the advice he gave for the treatment of the sick person. When dealing with a sick person it is important to find out if the illness occurred on board or if it has been there before boarding the ship, but was not noticed on the preemployment medical check. Unfortunately, it is sometimes hard to say whether or not an illness occurred due to a health condition that has already existed before being employed. Injuries even require a more extensive check and investigation. After taking care of the injured person and writing down all important medical conditions and drugs that were given to the person it is important to find out if there were any witnesses to the accident. If so, those persons should write their own report of what they have seen. Secondly, it is important to put everything on film; the place where the accident happened should be photographed, such as any circumstances that could have led to the accident, i.e. oily surfaces, broken ropes, damaged working gear, etc. Another important aspect is whether or not the injured person was wearing and using the proper safety clothing and gear. A few other questions are important to investigate to find out more about the accident. Did the injured person get a familiarisation when boarding the ship and before working with certain machinery? Did he read and sign this familiarisation sheets? Did he read the manual before operating the machinery and the additional safety instructions? Has someone given him an order that led to the accident or did he act on his own? Has the person who gave him the order the authorisation to do so? Could the victim have foreseen the accident, did the accident happen because of someone s carelessness? Did he tell anyone about his job, i.e. when entering enclosed spaces, and was the work carried out by enough personnel. Was he doing a job that would have required a second person or was he even ordered to do the job by himself instead of two persons? All those questions should be considered and asked and the answers be written down in the master s report. The master should also be very accurate about the accident report and the witness report(s). Every information taken could be helpful to avoid any later claim or, if it comes to a claim, it will be easier to rely on written information that 9

18 was taken right after the accident happened rather than trying to remember all the details after a long time. Furthermore, the ship-owner should keep all records related to the accident and payments made, on behalf of the crew member for a minimum of 3 years. The same accounts for the injured person. The victim should take witness statements and write down everything that is useful and he remembers, in case his superior acted without taking the proper precautions for a certain work or gave wrong orders that caused the accident. He should make sure pictures are taken from the accident site and -if existing- damaged working gear or machinery. 10

19 3. Personal Injury For insurance brokers personal injury means injury to a third person, but not to crew members. If crew members get injured they talk about crew injury or crew illness. There are different definitions of what a personal injury is. To keep it simple, someone might just say, that physical harm to a person is a personal injury. Some definitions also include non-physical harm. Personal injury due to non-physical harm is not relevant for this work and the aspect will therefore be neglected. In this work there will be no difference between personal injuries and crew injuries. When talking about personal injuries in this work there will be no distribution between injuries that happened to crew and third parties. 11

20 3.1 Reasons for personal injuries There are numerous reasons for Personal injuries to happen. A rating from the UK P&I shows their Hit List of the most common types of personal injury. Diagram 2: The Hit List 19 Slips and falls Inadequate footwear, oil or grease deposits on floors, alcohol excess, poorly marked or defective steps, descending steps and ladders the wrong way round, inadequate lighting, inadequate or non existent staging, over-stretching all these make slips and falls the top of the hit list. Falling object injuries Spanners in the engine rooms, cargo falling from nets, collapsing booms all feature regularly. The tremendous momentum involved usually makes such injuries very serious. Strains Back problems, hernias, damaged ligaments are all consequences of strains caused by failing to size a job up properly; by one man trying to do a job requiring two and by failing to use devices designed to assist with lifting and moving heavy objects. Passengers Passenger accidents occur so frequently seemingly because of the sense of security generated on board ship. Passengers tend to treat the ship as an hotel, not a means of transport and do not expect to adapt their life style at all. Passenger claims also arise from major casualties such as grounding, fire, and other incidents. Burns, fire and explosion injuries Carelessness in the galley and chemicals spills are common causes of burns. Smoking in cargo and accomodation spaces, electrical faults, poorly treated meal cargoes and engine room incidents lead the way for fire. Hot work and naked lights where explosive mixtures of gas have built up put both the ship and surrounding neighbourhood in peril. Machinery and equipment injuries Missing guards, lack of maintenance, over-loading and other abuse, want of training all make machinery and equipment potentially fatal to their operators; accidents are all too frequent. Enclosed spaces Entry to unventilated spaces keeps on happening. It frequently goes wrong and usually causes multiple fatalities because the urge to rush to the aid of a colleague in distress is so strong. Any of the above named reasons may lead to a personal injury of either crew or passengers and might also possibly lead to a claim. Not mentioned in the above list are claims based on crew sickness, though this, according to the North of England P&I Club accounts for a substantial number of claims Cf: March 21 st, Quote from March 24 th,

21 3.2 Crew Illness Those cases of crew illness claims can be dealt with rather quickly, because of the fact that only certain sicknesses are job-based. The Philippines Overseas Employment Act (POEA) contract; the contract for seafarers from the Philippines; even includes a certain section (Section 32-A) 21 which describes in detail which diseases are occupational diseases, given that the seaman was exposed to a risk that causes it and the disease occurred during his employment. To avoid unjustified crew illness claims the ship-owner should make sure the seafarer has to undergo a sufficient pre-medical check before being employed. In the Signals Special of August 2000 the North of England P&I Club states, that Over the past 5 years crew illness claims have accounted for over 5% of the total cost of claims, made to the Association, compared with a figure of about 14% for crew injury claims, so they are very significant Medical screening To avoid these costs ship-owners are advised to make sure they run standardized medical test before employing any seafarer. According to 81 of the German Seaman Code seamen have to undergo a medical test before they are permitted to board the ship. Only certain doctors who are approved by the SeeBG are allowed to run these medical checks. These doctors take the test according to the standards for the qualification for maritime service in Germany 23 to ensure everyone gets to make the same required test. This choice of certain doctors and clinics where these test are taken gives a relative security to the ship-owner that the seaman is healthy and capable of the stress that his work on board brings along. Of course if the seaman deliberately withholds information of an illness from the doctor there is no guarantee that this illness will be discovered during his check-up. If this happens and the seaman files a claim due to this unannounced sickness and after investigation it is proven that the seaman s illness was a pre-employment one, he will of course have no right to receive compensation. 21 Compare Standard Terms And Conditions Governing The Employment Of Filipino Seafarers On- Board Ocean Going Vessels, page 36ff and Annex 2 22 Quote from March 24 th, Quote from March 27 th,

22 In other countries than Germany medical pre-employment checks might be carried out differently and may vary from our standard. The North of England P&I suggests to extend the standard tests for seafarers and to run special tests to find out about any existing illnesses. The most common problems which may lead to claims if they are not identified prior to the commencement of the period of employment include: Hepatitis Hypertension Heart disease Liver disorders Diabetes Psychological disorders 24 The Club also recommends tests for HIV and kidney function, and routine alcohol and drug testing should be considered. 25 Although this might give the ship-owner a greater security about the medical condition of their employees, it also means rising costs for medical tests. Though compared to the costs for crew sickness claims, this might be worth to consider. On the other hand there is the seaman who will have to let the doctor run all these tests on him. Is it really necessary to check any seaman in this way, to take him apart just for a job? No matter if the ship-owner decides for a standard or an extended medical check he has to make sure that he selects qualified and objective doctors and clinics in whatever countries he likes to carry out this medical checks for his future employees. Some important points he should consider are: Well qualified doctors being permanently in attendance as well as fully qualified nursing staff, lab technicians, dentists and opticians and staffing levels sufficient to cope so that corners would not be cut at busy periods. Clean and well equipped clinics with the necessary apparatus needed for stringent medical testing. More stringent testing of candidates over the age of Quote from March 24 th, Cf: March 24 th,

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