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When Should I Consider a Claim for a Maritime Injury?
Passengers,
visitors and invitees aboard vessels have a cause of action
against a negligent vessel operator for their injuries under
federal general maritime law. However, a seaman has no action
against his employer under the general maritime law for the
negligence of his employer.
When
a seaman is injured on a vessel owned by his employer, another
federal law,the Jones Act, provides that seaman with the legal
ability to file suit against his employer for those injuries.
This is one of the few instances in which a lawsuit, as opposed
to a worker's compensation action, is allowed against an employer
by an employee.
However, in order to sue under the Jones act, an injured
victim must prove that he was a seaman. This is an issue that
is often litigated by the parties. Case law interpreting the
Jones Act provides guidelines for courts to consider in answering
the question as to whether the injured person will be considered
a seaman for purposes of the Jones Act.
In order to be considered a seaman the vessel must be in
navigation, the worker must have a more or less permanent
connection with the vessel and the worker must be aboard primarily
to aid in the navigation or contribute to the mission of the
vessel. Crewmen are generally considered seamen for purposes
of the Jones Act.
Some injuries occur on crewboats, jackup vessels, drilling
platforms and barges which are located on water. However,
just because the accident occurred on water does not mean
that the case will fall under the Jones Act. Congress has
provided for other remedies under other federal statutes including
the Longshore Harbor Workers Compensation Act for some of
these injuries..
In addition to the Jones Act, the vessel and its operator
owe to a seaman (but not a passenger, longshore or harbor
worker or visitor) the duty to provide a seaworthy vessel.
If a seaman's death or injury was caused by the unseaworthiness
of the vessel, the seaman can recover loss of income, medical
expenses, pain and suffering, and compensation for disability.
In considering whether to bring a claim for maritime personal
injuries which occurred on a vessel, the question of whether
the injured person was a passenger, guest or employee must
be answered first. If the victim is an employee of the vessel
operator, was he a seaman at the time of the accident? If
he was a seaman several other factors should be taken into
account before proceeding further.
Was the accident which occurred on the vessel witnessed?
Was an accident report filled out by the captain or injured
person? Were the other crewmembers or captain aware of the
condition which caused the injury? Had other people been injured
previously by the condition? Was the negligence of a fellow
crewmember involved? Did the captain offer or provide timely
medical assistance to the injured seaman? Will the crewmembers
testify in support of the injured seaman's claim? The answers
to all of these questions will help determine the liklihood
of proving a case of Jones Act negligence against the employer.
One of the primary factors which determines the amount of
damages to be awarded to an injured seaman is his lost wage
claim. Seamen are generally compensated higher many types
of professions. The ability to prove this wage loss depends
on income tax returns, pay check stubs and employer's records.
An injured seaman who cannot return to work on a vessel because
of his injuries is entitled to recover for the wage earning
ability he had before the injury. This is true even if he
can return to work at another job making less money.
Finally, the nature and extent of the injuries suffered by
the seaman are important considerations in deciding to bring
a claim for maritime personal injuries. In this area, many
seamen suffer back and neck injuries from slipping, tripping,
lifting or other accidents. If a victim had previous degenerative
back problems, the defense will argue that any negligence
on their part did not cause the injuries suffered by the seaman.
Back and neck surgeries can be very disabling and usually
prevent the seaman from returning to work on the vessel thereby
increasing his lost wage claim.
If the injuries are minor and do not prevent the seaman from
returning to work on the vessel, the victim may want to forego
a claim and continue his employment with the company.
If you have suffered a maritime personal injury, you should
consult an attorney experienced in handling these types of
claims.
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