Commercial Fisheries News May 2005 Back to Commercial Vessels Maritime Law and Commercial Fishing By Tim Akpinar Back to What to do in a Jones Act Injury Back to Maritime Law Links Reprinted with permission from Commercial Fisheries News - May 2005 Back to Commercial Fishing Links Maritime Law and Commercial Fishing Text File I have deep respect for anyone who earns their living on a commercial fishing vessel. On a daily basis, vessel owners and crew members work long hours and risk their lives facing hazards unlike those encountered on land. It is little wonder that the rights of commercial fishermen, as well as other marine workers, should be governed by laws and concepts unique to the maritime industry. These include the Jones Act, unseaworthiness, product liability, and other elements of maritime law. I wrote this piece so that someone without a legal background could read it and walk away with a working understanding of the law in this area. Since the Jones Act is the most well known of these laws, it’s a logical place to start. The Jones Act outlines the rights of “seamen” injured in the course of their employment. A seaman can be the mate on a dragger, engineer on a tugboat, or steward on a cruise ship. To qualify as a “seaman”, the employee’s duties must contribute to the function of the vessel or to the accomplishment of its mission, and the seaman must have a connection to a vessel in navigation (or to an identifiable group of vessels) that is substantial in terms of both its duration and its nature. This definition comes from marine case law (Chandris, Inc. v. Latsis, 1995). However, think of “seaman” as a crew member…for the scope of this article, that will do. The Jones Act provides an injured seaman with two categories of damages. The first category is economic damages and includes lost wages, living expenses, and medical expenses. The second category is non-economic damages and includes pain and suffering and mental anguish. Negligence is an important element of the Jones Act. We are all familiar with the basic idea of negligence…the most vivid illustration being the banana peel waiting to trip the unwary pedestrian. In lay terms, negligence means “carelessness”. In legal terms, negligence means a departure from a required standard of care resulting in damages. “Standard of care” is a fancy word for “duty”…a duty to act in a way that would not subject a foreseeable victim to an unreasonable risk. It’s simpler than it sounds. For a bus driver, “standard of care” means knowing how to apply the brakes without sending passengers through the windshield. For a chief engineer on a container ship, it means knowing how to isolate the power to a bilge and ballast pump so that a mechanic will not be electrocuted when servicing the motor. I took the time to define negligence because of its importance in the operation of the Jones Act. The Jones Act provides non-economic damages of pain and suffering only if there was negligence. Living expenses and medical bills (maintenance and cure) are economic damages and do not require a showing of negligence. Cure covers medical expenses until the seaman reaches maximum medical recovery. It includes hospitalization, physician care, physical therapy, rehabilitative medicine, prescription, etc. Maintenance covers expenses that would enable a seaman to live on land in the same manner in which he or she lived on the vessel. It is a low amount in the range of $25 to $30 per day. A Jones Act claim must be brought within three years of the accident or event giving rise to the injury. Additionally, the fact that the seaman’s actions contributed to his injury do not serve to disqualify his claim. His own contributory negligence would, however, serve to reduce an otherwise larger award. Unseaworthiness Under the concept of unseaworthiness, a vessel owner is held by general maritime law to owe a seaman a warranty that the vessel is a seaworthy vessel. Unseaworthy doesn’t necessarily mean on the verge of sinking. Unseaworthy means the vessel is not reasonably fit for its intended use. The entire vessel need not be unseaworthy, only the part that caused the seaman’s injury. Like a Jones Act claim, an unseaworthiness claim must be brought within three years of the accident or event giving rise to the injury. An unseaworthiness claim is brought against the vessel owner, whereas a Jones Act Claim is brought against the employer. Death on the High Seas Act The Death on the High Seas Act provides a remedy to the personal representative of a seaman who dies as a result of negligence or vessel unseaworthiness, or other wrongful act on the high seas. High seas means waters beyond three miles from the shore of any state, District of Columbia, or territories or dependencies of the United States. Personal representative can include the decedent’s wife, husband, parent, or child. An action may be brought against the vessel, person, or corporation which would have been liable had the death not occurred. Longshoreman and Harbor Workers Compensation Act The Longshoreman and Harbor Workers Compensation Act (LHWCA) covers employees injured in the course of maritime employment on navigable waters who are not seamen. It is essentially a workers’ compensation system and covers shoreside employees, including welders, mechanics, and cargo handling personnel, among others. If the employee was a regular member of the vessel crew (thus being a “seaman”), or the sole cause of injury was the worker’s intoxication, or the sole cause of the injury resulted from the worker’s deliberate attempt to injure himself or other person, coverage would be disqualified. Product Liability Product liability cases arise frequently in the news, from SUV rollovers to side-effects of prescription drugs such as pain-killers or anti-depressants. Product liability is the legal theory that applies to situations where a defective product causes injury. The injured person needs to show that the product was defective in that it did not perform its function safely as would ordinarily be expected, or that it could have been made safer in an economical manner. Something could be considered defective if it was defectively manufactured, defectively designed, or if it did not provide adequate warnings as to its risks. Practical Considerations It would be a nicer world if we didn’t have accidents and injuries. Unfortunately, accidents occur and people are injured at sea, and it’s important to follow proper procedure for the best interests of everyone involved. Accidents should be documented with a written report, photographs should be taken, statements should be obtained from witnesses, and qualified follow-up medical care should be sought on shore with an independent physician. Keep in mind that other legal issues can enter the picture, such as wrongful termination, assault, intoxication, limitation of liability, etc. Things can become complex. However, I wanted to make this outline clear and concise. I wanted to present basic marine law governing the rights of commercial fishermen. As such, this is a fairly basic primer. In situations where you aren’t sure of your rights, it is advisable to seek the advice of an attorney. Tim Akpinar practices in Little Neck, New York and can be reached at (718) 224-9824, t.akpinar@verizon.net, or www.mycounsel.us. He graduated SUNY Maritime College ’81, St. John’s Law ’93, and is a USCG Third Asst Engineer, Unlimited Horsepower. Back to Top |
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