Florida Maritime Accident Lawyer
Unseaworthiness and The Jones Act
The Rules of Oleron and Maintenance and Cure
Category: Unseaworthiness and The Jones Act
What is maintenance and cure? It is a ship's obligation to provide medical care and a living allowance for seamen who are injured on the job. It has been around for at least 850 years. The term comes Article VI of the Rolls [Rules] of Oleron, written in the 12th Century. Oleron is an island off the Atlantic coast of France, due west of Rochefort. The Rolls of Oleron were the first formal statement of "maritime" or "admiralty" laws in northwestern Europe, but they were based upon the existing laws of the Mediterranean. They were promulgated in England by Eleanor of Aquitaine in about 1160.
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Maintenance and Cure and Punitive Damages
Category: Unseaworthiness and The Jones Act
The 11th Circuit Court of Appeals currently has pending before it a certified question from the United States District Court in the Middle District of Florida concerning whether punitive damages are available when a shipowner wilfully denies maintenance and cure.
It appears likely that the Court will hear the case, although a final decision is not expected for a number of weeks. The case is Weeks Marine and Atlantic Soundings v. Townsend.
Maintenance and Cure, even in cases of seaman's wrongful conduct?
Category: Unseaworthiness and The Jones Act
Seaman are compensated for injuries sustained aboard ship by three separate concepts: the principle of maintenance and cure, the doctrine of unseaworthiness, and the Jones Act. The principle of maintenance and cure requires a shipowner to pay for medical care, and provide basic living expenses for any seaman injured on a ship, regardless of whether the shipowner is at fault. It is similar in some ways to workers' compensation.
The question then arisis, can a seaman be denied maintenance and cure if the injury is dur to wilful misconduct? At least one U.S. marine contruction company says so---Weeks Marine.
Weeks is wrong, of course. They usually are. But that doesn't stop them from sometimes leaving seamen high and dry and without medical care when a seaman is injured while working for them.
Retaliatory Termination of Jones Act Seamen
Category: Unseaworthiness and The Jones Act
Maritime employers are well known to invent pretexts for firing seamen who ware injured during the course of their employment. In 1981 the 5th Circuit Court of Appeals in New Orleans recognized a cause of action for retaliatory termination under the Jones Act. Later that year the 5th Circuit precedent became the law in the 11th Circuit (Florida, Georgia, and Alabama) as well.
Retaliatory termination is an intentional tort, meaning that a Jones Act seaman who is fired from his job is entitled to not only his lost wages, but also pain and suffering.
Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057 (5th Cir. 1981) the court said:
"The employer's discharge of the at-will seaman-employee, while it is in essence a lawful act, should not be used as a means of effectuating a "purpose ulterior to that for which the right was designed." Blades, supra note 3, at 1424. The employer should not be permitted to use his absolute discharge right to retaliate against a seaman for seeking to recover what is due him or to intimidate the seaman from seeking legal redress. The right to discharge at will should not be allowed to bar the courthouse door. Nor does the struggle affect only the employer and the seaman. To permit the seaman's discharge because he resorts to the courts may result in casting the burden of the employer's reprisal in part on the public in the form of unemployment compensation or social security for the worker or his family.
The recognition of a cause of action in admiralty providing the seaman with relief from a discharge caused by his filing of a claim against the employer is particularly appropriate in light of the admiralty court's protective attitude towards the seaman. n14 The judiciary's leading role in fashioning controlling rules of maritime law n15 and in reshaping old doctrine to meet changing conditions n16 makes the admiralty court peculiarly sensitive to the inequities inherent in the traditional rule. Moreover, this type of cause of action is not without federal precedent."
Coast Guard holds hearings on Maritrans Tug Valour Sinking
Category: Unseaworthiness and The Jones Act
Survivors of a tugboat tragedy that took the lives of three shipmates on January 18 testified on Wednesday, March 1, about how the accident happened. About 50 people were present at the hearing. According to the testimony of the crewmembes, one crewmember died of a heart attack and another was swept off the deck and lost at sea. Seamen on another tug rescued the chief engineer, but he had suffered a heart attack and died on board before he could reach shore.
The tug Valour is expected to be raised by a salvage company, after which another hearing will be held on the loss. The Chief investigator is Coast Guard Lt. Cmdr. Charles Barbee.
How Much is Seaman's Maintenance? It may be the amount of his mortgage.
Category: Unseaworthiness and The Jones Act
Seaman who are injured in the service of a vessel are entitled to maintenance, which is the reasonable cost of living ashore. Determining how much a shipowner has to pay for lodging is a difficult matter though.
Many seamen are single so the cost of lodging is the cost of a one bedroom apartment. Seamen who live with their parents both before and after they are injured are not entitled to the cost of lodging since they have no out of pocket expenses.
However, a seaman who has a home is likely entitled to the cost of the mortgage on that home, at least that is what the appeals court in New Orleans found in Hall v. Noble Drilling Inc., 242 F.3d 582 (5th Cir. 2001). The court said:
A seaman who pays for the rent or mortgage of a home he shares with his family actually spends out-of-pocket the entire amount. He cannot pay any less without losing his home. If a seaman would incur the lodging expenses of the home even if living alone, then the entire lodging expense represents the seaman's actual expenses.
As we have noted above, a seaman may recover for expenses he is obligated to pay or has promised to pay. See McCormick Shipping Corp. v. Duvalier, 311 F.2d 933, 933 (5th Cir. 1963) (per curiam). A seaman who pays for his rent or mortgage is obligated to pay the rent or mortgage regardless of the number of people living with him. Of course, if the seaman does not pay for the entire amount of the lodging costs, the seaman cannot recover for the entire amount, regardless of whether he lives alone.
STCW Code Requires Ship's Officers to Rest
Category: Unseaworthiness and The Jones Act
Many attorneys are unfamiliar with the Standards for Training, Certification, and Watchkeeping developed by a branch of the United Nations and adopted as part of U.S. law. The Code is a set of safety statutes, the violation of which can result in triggering section 53 of FELA, which in incorporated into the Jones Act, and eliminating comparitive negligence against a seaman.
One of the STCW requirements is that ship's watchstanding personel receive at least 10 hours of rest in each 24 hour period. People who went to sea in the 1970's and 1980's remember times when many officers would have balked at such requirements. It was during cargo operations when we made our best overtime because the work was constant for up to 2-3 days at a stretch.
However, if an officer doesn't get that amount of rest, and an accident occurs, it is likely that violation of the statute will be claimed to be a contributing factor.
Plaintiff's counsel need to be aware of these requirements contained in paragraph 1 of Section A-VIII/1of the STCW.
Shipowner Liable for Seaman's Injury Ashore
Category: Unseaworthiness and The Jones Act
As long as a seaman is injured while in the service of the ship, the ship may still be liable even if a traffic accident occurs ashore. This was a hotly contested issue until the Supreme Court decided the case of HOPSON v. TEXACO, 383 U.S. 262 (1966) in 1966. In that case, a seaman was on his way to the U.S. Consul in a taxicab in a foreign country when the cab had an accident. He was on the way to the Consul's office to prepare paperwork for the seaman's repatriation so he could get medical care in the U.S. The Supreme Court decided that the shipowner was liable under the Jones Act for the negligence of the taxi driver.
Marine Surveyor Injured on Chinese Tramp Steamer
Category: Unseaworthiness and The Jones Act
A Florida marine surveyor was recently injured when a pallet, which was being used as a step over deck piping which crossed over a walkway, gave way.
Pilots, marine surveyors, Customs and Immigration personnel, ship's agents, and all others who board ships are business invitees. While they are not accorded seamen's status, and while there is no "warranty of seaworthiness" applicable, the shipowner has a duty to exercise reasonable care to make the ship safe.
Is Jones Act Employer Liable if Seaman Injured on Launch?
Category: Unseaworthiness and The Jones Act
Seamen are protected if they are injured on the ship, but what happens if the are injured on a boat or launch going to and from the ship. Most legal minds agree that the Jones Act employer is still liable.
The SIU contract contains provision on "Launch Service" which provides that when a ship is anchored or tied to a buoy the crew is entitled at company expense to one round trip every 24 hrs and more importantly that "the master shall use his own judgement and if in his opinion the conditions are not safe, he shall not provide launch service."
Even without that provision, a shipowner has a duty to protect seamen from all the hazards they experience while doing their jobs, whether the hazard occurs on or off the ship.
Atlantic Soundings Nylon Tug Line Stretches and Snaps
Category: Unseaworthiness and The Jones Act
An Atlantic Soundings tugboat, the M/T Thomas, recently had an incident that demonstrates why ship and boat lines can be so dangerous. While moving two barges out of Atlantic Marine, a line secured between the M/T Thomas and one of the barges parted. According to one of the witnesses, the parting "line went flying over the tug like a rubber band." Fortunately, noone was hurt but the incident shows how dangerous lines can be when under tension.
Sealand Crewmember airlifted from Sealand Pride after fall
Category: Unseaworthiness and The Jones Act
William Dickey, a 62 year old crewmembers from the Sealand Pride was airlifted off the ship by the USCG south of Montauk Point. Dickey was injured when he fell from some scaffolding. The Coast Guard took him to the Rhode Island Hospital.
USCG: Bow Mariner Final Report
Category: Boat, Ship and Marina Fires
Twenty-one men died 200 miles off the coast of New Jersey in February 2004 when the M/V Bow Mariner exploded shortly after discharging a cargo of volatile petroleum product called MTBE--Methyl Tert Butyl Ether. The ship sank in about an hour an a half. Only six men, including the Captain and Chief Engineer, who abandoned ship 10 minutes after the explosion, survived.
Now the Coast Guard has issued its final report which puts blame on the decision of the Captain to open 22 cargo tanks for gas freeing. The Coast Guard says that the gas freeing operation caused flammable gases to accumulate on deck, leading to an explosion. It was quickly followed by two more explosions which racked the ship's structure.
The report has some good suggestions, like supplying seamen with immersion suits to prevent against hypothermia. However, its conclusions about the cause and origin of the fire are implausible. Generally, a ship moving through the ocean at 15 knots will not experience any accumulation of flammable vapors on deck because the air flow simply takes the vapors over the side. An explosion inside a tank is more likely.
Attorneys Fee enhancements in Maintenance and Cure Cases
Category: Unseaworthiness and The Jones Act
Very few attorneys will accept maintenance and cure cases these days because many circuits (the 5th covering Louisianna and Texas being the prime example) no longer permit punitive damages. However, attorneys may be overlooking the prospect of receiving two to even three times their hourly rate if they prevail in and M & C case.
In the 11th Circuit (Florida, Georgia and Alabama), a rate of twice the lodestar (customary rate for attorneys fees multiplied by number of hours) has been approved in Social Security cases. Frazier v. Sullivan, 768 F.Supp. 1511 (M.D. Ala. 1991). A fee multiplier has been approvingly spoken of in Kay v. Apfel, 176 F.3d 1322 (11th Cir. 1999), and even recommended by the court in Norman v. Housing Authority of City of Montgomery, 836 F.2d. 1292, 1303 (11th Cir. 1988).
Dormitory Barge is Vessel: 5th Circuit Reverses Itself
Category: Marine Construction & Dredging
The queston of what is a vessel is always important in marine construction cases since it is one of the criteria which separates "seamen", who are entitled to sue under the Jones Act, from "harbor workers" who are entitled to compensation under the Longshore and Harbor Workers Compensation Act.
Yesterday the 5th Circuit, which had previously decided that a dormitory barge was not a "vessel" for Jones Act purposes, reversed itself.
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Stocks to Watch: Tidewater Marine and Diamond Offshore
Category: Unseaworthiness and The Jones Act
Tidewater Marine (TDW) and Diamond Offshore (DO) have been posting new highs in the stock market in anticipation that oil prices will continue to climb. That is good news for seamen working in the oil patch. That means more jobs for everyone.
Mutual funds are loading up on these stocks. They are in the 99% percentile of mutual fund purchases for the past six weeks. They may be overbought now, but it reflects optimism about the future of rig boats and offshore oil drilling.
AMO Union Leaders Indicted
Category: Unseaworthiness and The Jones Act
For years the American Maritime Officers union out of Dania, Florida, one of the largest maritime unions representing merchant marine officers, has been controlled by the McKay family. The second generation started in 1993 when brothers Mike McKay, 58, and Bobby McKay, 55, both former shipboard engineers themselves [Full disclosure, I briefly went to sea with both Mike and Bobby and like them both. Also, at one time my picture was blown up as a poster in the AMO headquaters in Dania. I doubt it's still there.], became president and secretary-treasurer respectively. Now, according to a letter issued to union members by the McKay's, "a former executive in the AMO Plans and...a former [union] official..." have been working with the FBI and the U.S. Attorneys Office in Miami to get them indicted.
The 17 count indictment was issued last month and charges them, along with two other union officials, of rigging the 1993 and 1996 union elections, embezzling money from the union pension plan, and using housing at the Dania Beach training facility to house friends, family members, and guests. According to former union members, the training facility itself is owned by the McKays and leased by them back to the union.
The McKay brothers were released on bail of $500,000 each.
Loss of Consortium and Unseaworthiness
Category: Unseaworthiness and The Jones Act
Ever since Miles v. Apex Marine the admiralty bar has been in a state of disarray concerning what damages are recoverable under the doctrine of unseaworthiness. Most circuits have held that a loss of consortium claim (loss of consortium is a wife's claim for the loss of her husband's "sex, society, and services" when her husband is hurt) cannot be brought by the wife of a Jones Act seaman. I think they are wrong, but that's why they are appellate court judges and I am an attorney.
Their theory is that the Jones Act preempted the field and set forth the exclusive remedy for seamen injured while working on a vessel. If they are right, then why did maintenance and cure survive the Jones Act and Miles v Apex? Besides, the Jones Act is only the seaman's remedy. If his wife has suffered damages, the Jones Act never sought to limit her remedies.