MARITIME RIGHTS AND REMEDIES REVISITED.

• Author: Sterbcow, Paul M.

1. OVERVIEW 314 II. SEAFARERS 315 III. RECOVERY AGAINST EMPLOYERS 316 A. THE JONES ACT 316 B. UNSEAWORTHINESS 317 C. MAINTENANCE AND CURE 317 D. LHWCA 320 IV. THIRD-PARTY RECOVERY 322 A. JONES ACT 322 B. LHWCA 323 V. NON-SEAFARERS 324 VI. DOHSA 325 Unlike land-based injuries, rights and remedies available in cases within the maritime jurisdiction depend heavily upon the "class" of the victim and the injury locale. Seafarers (1) have different remedies than non-seafarers. Seafarer rights and remedies differ depending on the location of the harm. Maritime practitioners should carefully scrutinize the facts of the case to determine how to place the client in the best position to recover.

1. OVERVIEW

   Admiralty law is derived from ancient codes dating 1,000 B.C. and extending through the Greek and Roman Empires. The English law of the Middle Ages, contained in the Rolls of Oleron, was the first statement of maritime law in Europe. Based on the Lex Rhodia, which governed Mediterranean maritime commerce since before the first century, the laws were promulgated in England in 1160 under the rule of Richard I. The Rolls were eventually published in English and French and form the main basis for the development of separate and distinct rules of maritime law that exists today.

   Against this historical background, the founding fathers knew that the United States needed a uniform, distinct and strong body of national maritime law if the young country were to compete and prosper in maritime commerce. Article III of the U.S. Constitution extends the judicial power of the United States to "all cases of admiralty and maritime jurisdiction" in order to ensure that maritime law remained federal and consistent among the states. (2) The federal courts have exercised this constitutional authority to create a body of common law applicable to cases within admiralty jurisdiction. Initially drawing on the "laws, customs and principles of jurisprudence" (3) which preexisted the American Revolution, federal courts have also used a variety of additional sources, including state statutes and precepts of English common law in the process. The result is the constitutionally sanctioned, judge made unique body of federal law referred to as the "general maritime law." (4)

   Congress has also enacted a number of maritime statutes as part of its Constitutional legislative function. (5) Examples include statutes governing the rights and remedies of seamen, (6) the rights and remedies of other maritime workers', (7) deaths on the high seas, (8) inland navigation rules, (9) seaman employment protection, (10) and a host of other maritime concerns. (11) These statutes apply in specific fact situations and to specific classes of maritime actors. Thus, as the United States Supreme Court noted long ago, unlike any other body of American law, this country's law of the sea is a combination of Article III, [section] 2, cl. 1 jurisprudence and Article I, [section] 8, cl. 18 legislation. (12)

   Congress has also regulated admiralty jurisdiction. The Judiciary Act of 1789, codified as 28 U.S.C. [section] 1331(1), gave federal district courts exclusive jurisdiction of maritime actions "saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." (13) Exclusive federal court admiralty jurisdiction exists in actions in rem, (14) actions for limitation of liability, (15) in suits against the United States, (16) suits under the Public Vessel Act (17) and in actions involving ship mortgages. (18) Federal court jurisdiction over other in personam admiralty cases is concurrent with state courts per 28 U.S.C. [section]1333(1). (19) Congress has legislatively extended the scope of federal maritime jurisdiction as well. (20)

2. SEAFARERS

   In the vast majority of workplace injury and death claims falling within the admiralty jurisdiction, the injured worker is either a seaman whose claims are governed by the Jones Act (21) and the general maritime law, or a maritime employee covered by the Longshore and Harbor Workers' Compensation Act (LHWCA). (22) The Jones Act and LHWCA are mutually exclusive compensation regimes. (23) If the injured employee meets the test for seaman status, (24) he is covered by the Jones Act. If not, with certain exceptions, (25) his rights and remedies are governed by the LHWCA. (26)

3. RECOVERY AGAINST EMPLOYERS

   1. THE JONES ACT

      The Jones Act governs a seaman's claim against his employer only. There must be an employment relationship in order for the injured seaman to bring the Jones Act claim against a particular defendant. (27) The employer is solely responsible under the Jones Act for negligence (the duties are non-delegable) and for maintenance and cure. (28) The negligence and maintenance and cure remedies are personal between the Jones Act seaman and his employer.

      A Jones Act seaman may also sue the owner of any vessel on which he is working for breach of the general maritime law warranty of seaworthiness, regardless of whether the vessel is owned by his employer. (29) Unlike the Jones Act negligence and maintenance and cure rights, which are grounded in the employment relationship, the unseaworthiness warranty follows the vessel.

      Any breach of one or more of the enumerated employer duties under the Jones Act which is a cause, however slight, in causing harm entitles the injured seaman to recover damages. (30) Available remedies include past lost income, future loss of earning capacity, expenses of medical care exceeding cure benefits paid by the employer, physical and mental pain and suffering and disability/loss of enjoyment of life. (31) Non-pecuniary damages such as loss of consortium and punitive damages are not currently recoverable under the Jones Act in the U.S. Fifth Circuit. (32)

   2. UNSEAWORTHINESS

      The vessel to which the Jones Act seaman is assigned or working at the time of injury owes the duty of furnishing the seaman with a seaworthy vessel. The vessel, its crew and appurtenances must be reasonably fit for the vessel's intended purpose to be seaworthy. (33) Unlike the Jones Act, the injured seaman must only prove an unseaworthy condition which is a proximate cause of the seaman's injuries. (34) There is no requirement of knowledge of an unsafe condition or unfit equipment. The vessel owner is essentially dealing with a species of strict liability. However, the proof burden is higher standard than the Jones Act "featherweight" proof burden. (35)

      Damage remedies available to the injured seaman under the general maritime law doctrine of unseaworthiness mirror those available under the Jones Act in the U.S. Fifth Circuit. (36)

   3. MAINTENANCE AND CURE

      The general maritime law requires the employer to provide maintenance and cure to an employee injured in the service of the vessel regardless of fault, until he reaches maximum medical improvement or is able to return to maritime employment. (37)

      The obligation to provide maintenance requires the employer to pay the seaman a per diem allowance comparable to the value of the food and lodging received aboard the vessel at sea. (38) At the very least, the employer must provide maintenance sufficient to cover the seaman's shore-side reasonable costs for food and lodging. (39)

      The Hall decision details the proper method of computing maintenance and the seaman's proof burden in this regard. Like the Jones Act causation burden, the burden of producing evidence of expenses to prove a maintenance amount is "feather light." (40) The seaman must either spend his own money or obligate himself to another to obtain food and lodging in order to recover maintenance. (41) The seaman's food expense is confined to his personal consumption; the expenses of the seaman's spouse and children are not included. (42)

      Conversely, the seaman's actual lodging costs (rent/mortgage, heat, electricity and water) are included in maintenance. (43) Unlike food, this amount is not prorated among family members.

      In addition to actual expenses, the seaman must prove the reasonableness of the maintenance claimed. In determining reasonable costs of food and lodging, "The court may consider evidence in the form of the seaman's actual costs, evidence of reasonable costs in the locality or region, union contracts stipulating a rate of maintenance or per diem payments for shoreside food or lodging while in the service of a vessel, and maintenance rates ordered in other cases for seamen in the same region." (44) The court may take judicial notice of the prevailing rate in the district. (45)

      The court is compelled to compare actual expenses to reasonable expenses and award the lower of the two unless actual expenses are inadequate to...