SC Lawyer, July 2003, #5. Beware of the curve ball: representation of injured maritime workers.

Authorby S. Scott Bluestein

South Carolina Lawyer


SC Lawyer, July 2003, #5.

Beware of the curve ball: representation of injured maritime workers

South Carolina LawyerJuly 2003Beware of the curve ball: representation of injured maritime workersby S. Scott BluesteinJacques Barzum, a noted cultural critic and historian, wrote "[w]hoever wants to know the heart and mind of America had better learn baseball, the rules and realities of the game . . . "

In that respect, baseball and maritime personal injury law have a great deal in common: one has to know the rules and realities of both to understand them.

If the rules and realities of the general maritime law, designed to protect injured workers, are not fully understood or grasped, then a lawyer may find himself in a position similar to President Franklin D. Roosevelt's in the last days of his life: "like a baseball team going into the ninth inning with only eight men left to play."

On a daily basis in South Carolina, maritime workers, including seamen, dredge workers, longshoremen, pleasure boat captains, checkers, stevedores, vessel repairers, bridge builders and harbor workers, are exposed to work-related hazards and job duties that are very different than those to which land-based workers are exposed. This difference has been recognized by both the U. S. Congress and the courts, which have enacted special statutes and created remedies to address personal injuries to maritime workers. U.S. Supreme Court Justice Story, acknowledging the need to protect the welfare of seamen, wrote what became the mantra for admiralty cases: "[e]very court should watch with jealousy an encroachment upon the rights of seamen, because they are unprotected and need counsel. They are emphatically wards of admiralty ... they are treated in the same manner, as courts of equity are accustomed to treat young heirs." Harden v. Gordon, 11 Fed. Cas. No. 6047 (Cir. Ct. D. Ma. 1823).

This article will briefly address the rights and remedies of injured maritime workers under the general maritime law. In handling work-related personal injury cases involving maritime workers, the first step an attorney must take, whether representing the worker, vessel owner or employer, is to determine the status of the maritime worker. The maritime worker's status determines the type of claim the worker will possess under the general maritime law.

A maritime worker who is employed as a seaman is entitled to bring claims for job related injuries under the Jones Act, 46 USC App. § 688, for maintenance and cure and for unseaworthiness. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960). Longshoremen, stevedores, harbor pilots, vessel repairers, bridge workers and other harbor workers are entitled to apply for benefits under the Longshore and Harbor Worker's Compensation Act, 33 USC §§ 901-950. The types of damages recovered by seamen and harbor workers, in many instances, are unique when compared to the damages land-based workers can recover under the South Carolina Worker's Compensation Act.

Personal injuries of seamen

Seaman's claim for maintenance and cure

The general maritime law permits every seaman who becomes ill or injured during the course and scope of his employment, regardless of who was at fault in causing the illness or injury, to maintenance, cure and unpaid wages until the end of the voyage on which the illness or injury occurred. A seaman does not have to show a causal relationship between his employment as a seaman and his injury. Instead, a seaman is entitled to maintenance and cure if he meets the burden of proof that his injury or disability occurred while he was generally answerable to the call of duty or in the service of the vessel. Farrell v. United States, 336 U.S. 511, 1949 AMC 613 (1949); Waterman S.S. Corp. v. Jones, 318 U.S. 724, 1943 AMC 451 (1943).

"Maintenance" is defined as the reasonable cost of the seaman's room and board while living ashore until the seaman is fit to return to duty or has reached maximum medical cure. Maximum medical cure occurs when the maximum benefit of medical treatment has been received by the seaman and further treatment either will not be curative in nature or the seaman's injuries will not improve with additional treatment. Vella v. Ford Motor Co., 421 U.S. 1, 1975 AMC 563 (1975). "Cure" is defined as the reasonable cost of curative medical treatment until the seaman reaches maximum medical cure. Thus, the seaman's employer must pay the seaman maintenance money for his food, room and board until he reaches maximum medical cure.

The amount of maintenance to be paid is determined by the cost of the seaman's monthly living expenses for necessities such as electricity, water and food while he is injured and not living on board his vessel. The purpose of maintenance is to provide the seaman with room and board during the period he is recovering from his injuries; it is not to compensate him for his lost wages during this period.

"Cure" is the payment of medical expenses associated with the injury. Regardless of liability, an employer is required to pay for a seaman's medical expenses associated with his injury or sickness until a doctor indicates that any future medical treatment will no longer be curative in nature. Kossick v. United Fruit Co., 365 U.S. 731, 1961 AMC 833 (1961). "Curative nature" is defined as medical treatment that will improve a seaman's injuries as compared to medical treatment that will make the seaman's injuries more "palatable," or less painful.

Seaman's Jones Act claim

Although a federal workers' compensation statute has not been enacted that applies to seamen, the Jones Act provides a cause of action for negligence against an employer for any seaman injured in the course his employment. Chandris Inc. v. Lattsis, 115 S. Ct. 2172, 2182, 1995 AMC 1840, 1844 (1995). "A seaman is entitled to recovery under the Jones Act, therefore, if his employer's negligence is the cause, in whole or in part, of his injury." Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335, 1997 AMC 1521, 1526 (5 Cir. 1997). To recover damages under the Jones Act, the seaman's injuries or death must arise from the negligent acts of the employer, its agents or employees or from a defect in the employer's equipment that resulted from the employer's negligence. Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 436 (4th Cir. 1999). The Jones Act creates an affirmative duty on the part of the seaman's employer to provide the seaman with "a reasonably safe place to work," Gautreaux, 1997 AMC at 1526, 107 F.3d at 335. "Jones Act actions can only be brought against a seaman's employer" and are in addition to unseaworthiness claims that may be brought against the vessel owner or operator. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 1949 AMC 1031 (1949); Davis v. Hill Engineering, Inc., 549 F.2d 314, 1977 AMC 1090 (5 Cir. 1977).

Who is a Jones Act seaman?

The Jones Act does not define the critical term "seaman" and thus "leaves to the courts the determination of exactly which maritime workers are entitled to admiralty's special protection." Chandris, Inc., 115 S. Ct. at 2183, 1995 AMC at 1845. In developing a test for seaman status, the Supreme Court has focused "on the nature of the seaman's service, his status as a member of the vessel, and his relationship as such to the vessel and its operation in navigable waters." Id. 115 S. Ct. at 2185, 1995 AMC at 1849. The key to seaman status is the maritime worker's employment-related connection to a vessel in navigation. An employment-related connection to a vessel exists if two conditions are satisfied: first, an employee's duties must "contribute to the function of the vessel or to the accomplishment of its mission," or doing ship's work. Id. 115 S. Ct. at 2190, 1995 AMC at 1856. Second, the employee's connection to the vessel (or to an identifiable group of such vessels) "must be substantial in both its duration and nature." Id.

The first prong of the Chandris seaman status test focuses on the employee's employment at the time of the injury. In satisfying this requirement, the seaman does not have to aid the vessel in navigation, see McDermott International, Inc. v. Wilander, 111 S. Ct. 807, 816, 1991 AMC 913, 927 (1991); rather, the employee must merely "perform the work of the vessel." Id. 111 S. Ct. at 817, 1991 AMC at 927. This standard is very liberal. The Supreme Court has said that "[a]ll who work at sea in the service of a ship are eligible for seaman status." Chandris, 115 S. Ct. at 2190, 1995 AMC at 1856 (emphasis in original). A floating object will qualify as a Jones Act vessel when its purpose and function are as an instrument of commerce to transport passengers, cargo or equipment on navigable waters. "Navigable waters" are all waters, including lakes, waterways, rivers, harbors and oceans that are being used by vessels or are capable of being used in interstate or foreign commerce. The Daniel Ball, 77 U.S. 557 (1871).

With regard to the second prong of the Chandris seaman's test, the Supreme Court has held that courts should not be tempted to use detailed tests to determine seaman status; rather, courts should look to an individual's employment in connection to a vessel or fleet of vessels to determine seaman status.

In our view, "the total circumstances of an individual's employment must be weighed to determine whether he had a sufficient relation to the navigation of vessels and the perils attendant thereon." The duration of a...

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