Know Your Rrights as an Injured Seamen

by: Jay A Kaplan

This bulletin is in two parts. The first part introduces the special protection afforded to you as a "seaman," using actual quotations from court cases. The second part provides examples of the special protection.

Working on the ocean is hazardous and the law recognizes that an employee who works on the ocean in "service of a vessel" should receive more protection than a land based worker. The most important fact for those who are injured while working for a vessel or fleet of vessels is that any career threatening injury should be evaluated for special protection status as soon as is reasonably possible.

A vessel includes any water craft that can be "used, or capable of being used, as a means of transportation on water. " A vessel "need not be in motion to qualify as a vessel."

"Service of a vessel" means that:

  1. a workers duties " contribute to the function of the vessel or to the accomplishment of its mission. The Jones Act's protections, like the other admiralty protections for seamen, only extend to those maritime employees who do the ship's work. But this threshold requirement is very broad: All who work at sea in the service of a ship are eligible for seaman status"; and that
  2. as a general rule, a worker has to have a "substantial connection" which means that his work duties require that he spend at least 30% of his work time "contributing to the function of the vessel or vessels." However, less than 30% may qualify because the law recognizes "there can be exceptions, depending on the specific facts of the case."

It is important to note that once at least 30% of a worker's duties are in service of a vessel, he is broadly protected against injury both at sea and on land. "Maritime workers who obtain seaman status do not lose that protection automatically when on shore and may recover under the Jones Act whenever they are injured in the service of a vessel, regardless of whether the injury occurs on or off the ship."

Once the law recognizes a worker as a seaman, his injury claim is "conducted with extraordinary solicitousness for the seaman," because "the maritime law by inveterate tradition has made the ordinary seaman a member of a favored class." The policy of Congress also, "as evidenced by its legislation, has been to deal with them as a favored class." Courts "have always shown a special solicitude for the welfare of seamen and their families."

This special protection and solicitude of the seaman means that the "the duty owed by an employer to a seaman" is to be applied "so broad that it encompasses the duty to provide a safe place to work." If the employer does not provide a safe place to work and the seaman is injured he recovers money damages "even when an employer's negligence plays any part, even the slightest, in producing the injury or death for which damages are sought."

The Jones Act is a Federal Law enacted by the Congress of the United States, dating back to the early 1920's which allows an injured seamen to sue his employer for money damages due to the employers negligence which caused or contributed to their employee’s injuries. The Jones Act covers Seamen working in the service of a vessel which is in navigation at the time of their injury. The Jones Act covers all injuries sustained by Seamen whether on or off of the vessel. A vessel, under the law has been adjudicated to include tug boats, dredges, barges, tow boats, crew boats, tanker boats, supply boats, off shore oil rigs, etc. In order to recover under the Jones Act, the employee must be able to prove that the company or the co-employees were negligent due to unsafe actions caused by co-workers, an unsafe work place, improper instructions, or a failure to warn of dangerous conditions.

More specifically, under the Jones Act, an employee has a right to a “safe place to work”. This includes the employer having the duty to properly train you as well as your co-workers, to offer proper supervision over the work duties of the crew, and to provide sufficient man power to safely and properly perform the assigned tasks to you and the crew. Unfortunately, after crew members are injured the employer will erroneously try to avoid their responsibility by saying that they did nothing wrong because it was a “one man job” and the job had “always been done that way” which is not what the Jones Act requires. A vessel owner owes a Jones Act Seamen an absolute duty to provide a sea worthy vessel which means that there must be safe and proper gear and equipment a competent crew and appropriate safety gear.

Additionally, there are many industry rules, regulations and standards that apply under the Jones Act that the employer never makes their employees aware of if unfortunately they are injured. For instance, Coast Guard Regulations apply under the Jones Act since technically the employee is assigned to Coast Guard Vessels. That is the reason that the U.S. Coast Guard will investigate significant injuries which occur under the Jones Act. Specific Coast Guard Rules and Regulations include keeping the vessel safe, secure and ascertaining that there are no potential dangerous and hazardous or slip or fall hazards aboard the vessel. Walkways must be properly marked under Coast Guard Regulations. Further, OSHA regulations are also applicable under the Jones Act. OSHA requires inspections to be performed in the workplace. OSHA also requires that equipment and machinery be functioning properly and that employees are furnished with safe work places.

Another benefit that must be provided to the employee under General Maritime Law is Maintenance and Cure. Maintenance is money that your employer is obligated to pay you if you are injured on the “high seas”. Under the law the employer is obligated to pay cost for such things as lodging, food and other necessities. Typically, companies assess this amount at between $15.00 to $50.00 per day. However, this is an arbitrary amount and not binding. Cure is specified as medical expenses that are reasonable and connected to your on duty injury. You are entitled to have your medical expenses paid by your employer whether it is a doctor of your own choosing or one recommended by your employer. In that regard, you are absolutely entitled to choose your own treating physician and your employer is obligated to pay for your medical treatment that is reasonable and related to your injury.

Lastly, if unfortunately you suffer an injury while at work it is important that as soon as you are able, that you log your injury and fill out an accident report. It is critical that you describe how the accident occurred and detail any fault on negligence on behalf of the company or your co-employees. If the accident was caused by unsafe or defective equipment or dangerous condition or workplace practices it is imperative that it be listed on the accident report. A lawsuit arising under the Jones Act must be filed in State or Federal Court within three (3) years of the date of the accident.

To learn more about your rights and the responsibilities of your employer if unfortunately you become injured, please contact Jay Kaplan at Kaplan Law Corporation/Stolpman, Krissman, Elber & Silver LLP at (800) 552-7526.


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