The Jones Act and Merchant Marines

If the Jones Act is applicable to your case, you are essentially a “ward” of the court. This means that it is the duty of the court to protect you and safeguard your rights. Although the term does not have the influence it did earlier, under the Jones Act, injured merchant marines are still regarded as wards of the court. This highlights the significant protection that the Jones Act provides for merchant marines.

The jones Act deviates from the general rule that prohibits you from suing your employer even if they are responsible for your injury. The Act enables you to file a claim directly against your employer, and collect monetary damages if their negligence contributed to or caused your injury. If your coworker was at fault and either caused or played a part in causing your injuries, you can file for compensation from your employer.

While claiming compensation under the Jones Act, you must consider two main factors:

1. Prove of negligence

   The Jones Act is fault-based. This means that you are only eligible for compensation if your employer was at fault. However, it is often easy to demonstrate that your injury was avoidable had your employer’s actions been safer.

   Your employer's fault can include:

   • Providing a hazardous workplace

   • Giving inappropriate or dangerous instructions

   • Dangerous or inappropriate actions by your coworkers.

   It is critical that you record any fault by your employer or coworkers in the accident reports. You should also include any dangerous equipment or work conditions that may have contributed to or caused the accident.

2. Comparative fault

   After the accident, your employer may try to record a statement from you and discuss how the accident happened immediately. They will be trying to defend themselves early against any claims you may file against them under the Jones Act.

   Under the Act, your employer can allege comparative negligence. If your employer proves that you contributed to or caused the injury, the recoverable damages will be reduced by the percentage of your contribution. For example, if your employer proves that you contributed 40 percent to your injury, the damages allocated to you under the Jones Act will be reduced by 40 percent. Therefore, if your damages under the Act amounted to $100,000, you will only receive $60,000.

Private mariners who import and export goods commercially are included in the Jones Act coverage. The Act provides protection for the workers since they are not covered by workers’ compensation. The workers covered include captains, officers, masters, and crew members who work on a single vessel or a set of commonly owned vessels that are “in navigation.” For a vessel to be “in navigation” it must be operational, afloat, on navigable waters and capable of moving. This means that the construction of the vessel is complete and the vessel is in use. In addition, a vessel in repair is considered to be “in navigation” since it is docked on water.

Not everybody who works in or near water vessels qualify for compensation under the Jones Act. You must meet the following criteria:

• You must spend a minimum of 30% of your working time on a vessel that is considered to be in navigation. However, the 30% figure is not always definite.

• You must be assigned to a vessel or a fleet that operates in waterways that can be used for foreign or interstate commerce.

• Your work must be related to the function of the vessel. As long as your work contributes to the purpose of the vessel, the importance of your job is irrelevant.

If you do not meet the 30% minimum requirement, the federal Longshore and Harbor Workers' Compensation Act will provide you with the necessary coverage.

The Jones Act demands that your employer provides reasonably safe working conditions. If your coworker is negligent and they cause you injuries, you may sue your employer. Examples of negligent acts by the employer that can trigger a lawsuit include:

• Inappropriate safety training for the captain or the crew prior to performing their duties

• Irregular inspection of equipment and parts

• Poor maintenance and repair of malfunctioning equipment

• Lack of proper safety equipment and gear for the crew

• Failure to place warning signs in hazardous areas

• Assault by a coworker

• Slippery surfaces or substances such as oil on the deck

• Failure to provide and maintain seaworthy vessels

Your actions immediately after the accident will have a major influence on how your claim will be processed. Here is what we recommend that you do to safeguard your ability to file a claim successfully:

• Seek medical attention.

• If possible, take pictures of the injuries and the scene.

• Note the names and contacts of anybody who may have witnessed the incident.

• Report the incident and the injuries to your employer as soon as it is practically possible.

• Do not discuss the details of the incident with anybody else except your attorney and your doctor. Do not sign any documents.

• Once you have received medical attention and you have reported the injury, call your attorney.

You can bring a claim of negligence under the Jones Act if your injury resulted from careless acts of your coworker or employer. The shipowner may also be held liable if an accident occurs due to the hazardous conditions of the vessel. Regardless of how you were injured, expenses under the doctrine of maintenance and cure must be paid. In addition, when you file a Jones Act claim, your supervisors and coworkers will not pay you anything. Only your employer is responsible for your injuries.

You can file a claim if any of the following scenarios applies to you.

• Your employer is not giving you payments for maintenance and cure.

• Your employer terminated your employment after the injury.

• Your employer did not provide a safe working environment.

• The equipment was either faulty or poorly maintained, and it contributed to the injury.

• A coworker contributed to your injury either by mistake, recklessness or due to inappropriate training.

Contrary to regular injury claims, you must show in your Jones Act claim that your employer had a role in your injury, regardless of how minor the role was. Even if you were negligent, you can still file a claim if your negligence was only one of many causes of the injury.

Claiming damages under the Jones Act involves four main steps:

1. Notify your supervisor about the injury within seven days

2. Fill out an accident report about the injury and make a statement officially indicating who was at fault

3. Seek immediate medical treatment. Keep the records for use in your claim

4. Settle your claim or sue the employer

Settling your claim will be completed after several stages.

1. Discovery: At this stage, your employer and their attorney ask you to respond to written questions. This exercise is referred to as the discovery process. Your attorney will guide you through the questions before you respond to them.

2. Depositions: This is a session where the respondent’s attorney asks you oral questions in the presence of your attorney. The respondent’s attorney will also hold deposition sessions with your coworkers and eye-witnesses to the accident.

3. Doctors’ appointments: It is critical to your claim that you attend all your medical appointments for tests, evaluation, and treatment. You need to be well informed about the injury and receive the best possible treatment.

4. Mediation, Settlements, and Trial: After the two legal teams have gathered adequate evidence, your case can proceed to either mediation, settlement or trial.

Mediation: You hold a voluntary meeting with your employer to try to settle the claim without any assistance from the court.

Settlement: This is a voluntary agreement between you and your employer.

Trial: If you cannot agree on a settlement with your employer and mediation fails, your case will be heard by a judge or jury in court. However, in a majority of the cases, you will receive an offer for an out-of-court settlement. You are at liberty to choose whether to accept the offer or proceed to court.

This is the time limit within which you can file a claim. If you do not file a claim within this time, you risk losing your right to compensation. The statute of limitations on the Jones Act is three years commencing on the date the accident occurred.

If the injury is discovered later than three years, the statute of limitations may be extended. The extension commences at the time that the injury is discovered. In addition, claims on unseaworthiness also have a statute of limitations of three years from the day of the accident. However, if your claim is against the government, the statute of limitations is set at two years.

‘Damages’ is the legal term used to define money awarded to injured workers through court processes if the workers are injured due to negligence or wrongful acts by others. The Jones Act entitles you to collect damages that are related to your injuries directly.

Maintenance and Cure

Maintenance and cure is the minimum legal requirement in a claim under the Jones Act. It differs from other aspects of compensation under the Act because the conduct of the shipowner or employer does not matter. All you need to prove is that your sickness or injury is work-related. Although this payment is easier to claim, the recoverable damages are significantly less. However, you can collect these modest benefits in addition to other benefits for unseaworthiness or negligence liability.

This payment has two main components:

1. Maintenance: This the amount you need for personal maintenance on land during recovery, similar to how your employer paid for your maintenance at sea. It includes the cost of your monthly bills, accommodation, and food while you are sick or injured. The daily allowance is usually a fixed rate, often ranging from $15 - $30 a day.

2. Cure: This refers to any reasonable expenses related to your injury. Under the law, you are entitled to receive treatment from any doctor of your choice.

The payments for both maintenance and cure must continue until you reach the maximum possible medical improvement. This is the point where medical care cannot improve your condition any further.

After you are injured offshore, you may be entitled to more compensation in addition to the legal minimum of maintenance and cure. If the injury was a result of an unseaworthy vessel or negligence by the captain, a crew member or owner of the vessel, you can file a lawsuit for additional damages.

Additional Damages under the Jones Act

• Medical expenses: Your employer may be obliged to pay for additional medical costs that are not part of your maintenance and cure benefits. These include costs related to immediate treatment as well as reasonably acceptable future costs. For example, if you require multiple surgeries or long-term rehabilitation, you can claim compensation in addition to current costs.

  Medical expenses cover:

  • emergency care
  • doctor’s services
  • diagnostic tests
  • medication and other medical supplies
  • hospitalization
  • x-rays
  • surgery
  • physical or occupational therapy
  • travel to out-of-town treatment facilities
  • specialized medical equipment
  • psychological counseling
  • nursing care

• Loss of wages: This addresses your lost income when you are unable to work temporarily. It covers the wages lost when the injury occurred and the earnings you lose during your medical treatment and recovery.

• Loss of earning capacity: This covers the wages that you lose if you cannot return to work due to a permanent disability. Factors that determine compensation for your loss of earning capacity include your age, race, gender and the time remaining before you retire. Other factors include vacation time, retirement plans and the estimated value of your health insurance benefits. Sometimes, anticipated promotion may be factored in if you show sufficient proof.

• Lost benefits: Since maritime jobs usually pay high benefits, you can claim compensation for benefits lost while you were in recovery. If you cannot return to work, you can claim for loss of future benefits.

• Pain and suffering: In legal terms, these damages cover two aspects of your health; physical injuries and psychological stress also known as mental anguish. Physical injuries include aches, scars and inability to engage in physical activity. Psychological stress includes anxiety, post-traumatic stress or depression, and reduced life expectancy. Compensation for pain and suffering is often awarded in addition to general damages.

• Loss of consortium: Your injury may make you unable to participate in activities that you enjoyed previously. Constant pain, loss of mobility and diminished physical strength may prevent you from enjoying life and spending time with family, friends and loved ones. These may make your spouse and family suffer. Loss of consortium benefits cover these types of losses.

Both Workers’ Compensation and the Jones Act provide compensation for workers injured in the course of their employment duties. However, there are many differences that you must consider when filing your claim.

1. Eligibility: As a marine merchant, you are not eligible for workers’ compensation. The Jones Act provides you with benefits similar to those covered by Workers’ Compensation.

2. Claims of negligence: In a Jones Act claim, compensation depends on who was at fault and to what extent. You must provide proof of your claim of negligence, and it can apply to your employer, officers, captains, operators, crew members or another employee who may have contributed to or caused the accident. In Workers’ Compensation, whether your employer, you or a coworker was at fault is irrelevant. The fault has no bearing on your ability to file a workers’ compensation claim.

3. Compensation options: The Jones Act offers you more compensation coverage than Workers' Compensation. Under the Jones Act, you will receive compensation for past and future medical bills and lost wages. In Workers’ Compensation, you are entitled to medical costs and disability benefits when you are out of work. However, you cannot receive benefits for future loss of wages or future medical expenses.

4. Period of compensation: In the Jones Act, you may be eligible to receive payments for medical costs for a lifetime. Under Workers’ Compensation, the benefits are limited to a given period of time.

5. Daily living expenses and lost income: The Jones Act will only provide $15 - $40 per day. Workers’ Compensation will provide two-thirds of your wages.

6. Suing your employer: The Jones Act allows you to sue your employer if they were negligent. In some instances, you may be able to sue for punitive damages. In Workers’ Compensation, you cannot sue your employer even when they were negligent, neither can you sue for punitive damages.

What does “burden of proof” mean under the Jones Act?

The burden of proof in all personal injury cases means that you provide evidence to show that negligence by the respondent was the main cause of your injuries. However, in your Jones Act lawsuit, you are only required to show proof that negligence by the respondent somehow contributed to your injuries.

My employer’s insurance claims investigator asked for a recorded statement. Should I give it?

No. Do not give any statements before you speak to your lawyer. If you do not give the investigator any testimony, you will prevent them from using your statement against you when you are providing evidence in your case for compensation.

Will I be fired if I bring a Jones Act lawsuit against my employer?

The Jones Act gives you the liberty to bring a lawsuit against your employer. This offers no guarantees that you will not be fired. However, your employer cannot fire you without legal consequences. If you are fired or your employer retaliates against you, you can file an additional lawsuit against them for wrongful termination. If the evidence is sufficient, you are entitled to compensation for lost wages.

State and federal laws can generally be confusing for anyone who does not practice law. Specifically, maritime law is more complex and requires attorneys with specialized skills. The need for you to prove that negligence does not favor your claim since it is not always easy to determine who was negligent. If you are in Orange County, CA and you want to file a claim, call our Orange County workers compensation lawyer at 562-485-9694 to talk to an experienced maritime lawyer from The Workers Compensation Attorney Group. We will help you understand your rights and the legal options available. We will vigorously follow up your claim and passionately represent you to help you receive the highest possible compensation.