Have you suffered from an offshore injury or lost a family member due to an offshore accident?
Working in the oil and gas industry can be dangerous. Maritime accidents and injuries are inevitable due to equipment failure, personnel mistakes, and extreme natural impacts which cause spills and blowouts.
Offshore workers are covered under a variety of different maritime laws. The nature of the work will determine which law will be applicable under the circumstances.
Questions of status arise as to whether or not an injured person or decedent qualifies as a seaman, maritime worker or oil and gas worker. Depending upon the plaintiff's status, different remedies will be available.
There are also difficult issues as to whether maritime remedies are available or whether other federal remedies or even state remedies apply.
Maritime law can be confusing, befuddling, and inconsistent. Seaman, longshoremen, and other maritime workers have specified legal rights under various Congressional acts and laws.
Because of the complexity of maritime law, an injured worker or their family should contact a qualified maritime/admiralty attorney to protect your legal rights and secure your future.
R E M E D I E S AVAILABLE TO SEAMEN
MAINTENANCE AND CURE
If you have suffered an offshore injury, then you are automatically entitled to recover compensation for maintenance and cure if you qualify as a “seaman.”
Maintenance and cure is the equivalent to land based worker’s compensation. However, the benefits provided by the Jones Act can be significantly higher than benefits for workers on land.
The employer’s duty to pay maintenance and cure begins upon the occurrence of the injury or manifestation of the illness.
Maintenance and cure are paid out in addition to what you can recover in a lawsuit for negligence or unseaworthiness.
Acceptance of maintenance and cure benefits does not affect your rights to file a lawsuit against your employer or any other negligent third party.
Maintenance is a small daily allowance that provides some compensation for lost wages. This means the eligible seaman will receive a weekly check to cover his expenses. Maintenance is a stipend and paid out without considering fault or negligence.
Cure is considered compensation for medical bills. The key to cure benefits is that the medical treatment received must be “curative” in nature for the expenses to be covered. All treatment deemed to be curative should be considered cure; this includes doctors and hospital bills, x-rays, MRI and CT scans, bone scans, EMGs, EEGs, medical prescriptions, diagnostic testing, emergency transportation, nursing services, reasonable travel expenses to and from the doctors, physical therapy, and in home health care.
Remember that you are entitled to top medical care, you don’t have to go to their doctor and you get to make the critical decisions, not your company or the company doctor.
Once the injured worker reaches a point where all continuing treatment is directed at making you more comfortable and your condition is no longer changing or improving, then you can be determined to be at Maximum Medical Improvement. Maximum medical cure is defined as the end of the convalescence of the seaman, that point at which the seaman expects no further improvement medically. Until the seaman reaches that point, he or she is entitled to an allowance for subsistence and medical payments. Unfortunately this does not mean that the injured work no longer requires medical care just that he or she has recovered to the point that no further improvement is expected.
Once this occurs, and you are essentially stable maintenance and cure benefits cease. At this point, your lawyer will most likely have already filed suit and have been negotiating your settlement.
The Supreme Court has held that the remedies of maintenance and cure are designed to be broad and inclusive. There are very few recognized affirmative defenses or bars that allow the employer to escape the duty of maintenance and cure. An employer may argue that the injury did not occur in the workplace or occurred as a result of the seaman’s own willful misconduct, such as gross inebriation, alcoholism, fighting, venereal disease and HIV.
An employer may also assert The McCorpen Defense. If a seaman willfully concealed that pre-existing condition to the employer upon being hired, the employer would not owe maintenance and cure. If the employer requires a medical examination the seaman’s obligation is to truthfully answer those questions asked by a health care provider or in the hiring process. If the employer does not require a physical examination, the worker would only be required to disclose conditions that he reasonably could be expected to know the employer would consider in hiring him. Finally, even where “concealment” is found, if will not defeat the employer’s obligation to pay maintenance and cure benefits under the law unless it is the cause of the current injury or condition.
WHAT IF EMPLOYER WON’T PAY?
When maintenance and cure is not paid or fails to pay enough compensation, a seaman is entitled to prosecute the failure to pay claim as a lawsuit, and is entitled to the payment of attorney’s fees. The seaman may also bring the claim for failure to pay maintenance and cure as part of a Jones Act lawsuit. Additionally, if your employer is found not only to be unreasonable but also arbitrary in failing to pay maintenance and cure, you may be awarded damages for any worsening of your condition due to your employer's failure to pay your maintenance and cure.
THE JONES ACT
The Jones Act gives “seamen” a right only against their “employers.”
Injury claims under the Jones Act are treated very differently than land-based cases.
Employer negligence causes many common offshore accidents, including deck accidents, falls, equipment failures, falling cargo or equipment, fires and explosions. In recognition of the inherent danger of working at sea and the value of trained seamen, the Jones Act was passed established a system of benefits for those who are employed or engaged to serve in any capacity on board a vessel or structure meeting the criteria set out by court decisions.
The Jones Act may apply whether the vessel is within or beyond the boundaries of state jurisdiction and whether the injury or death occurs on the rig, on shore or en route to the rig over water.
The Jones Act is a federal statute and puts the onus on the owners and employers of sea-faring vessels to provide a safe working environment for their employees. The employer need not be the owner or operator of the vessel to which the seaman is assigned and can even be a land-based employer. And it may also be possible for a seaman to have more than one Jones Act employer, for example, if a seaman is deemed to be a borrowed employee of one employer, this does not automatically mean that he ceases to be his immediate employer's servant for Jones Act purposes.
The Jones Act provides heightened legal protections to seamen because of their exposure to the perils of the sea, but does not define the term "seaman."
The test for seaman status adopted by the Supreme Court has two essential requirements. The first is a broad threshold requirement that makes all maritime employees who do the ship's work eligible for seaman status. The second requirement determines which of these eligible maritime employees have the required employment-related connection to a vessel in navigation to make them in fact entitled to Jones Act benefits. This requirement gives full effect to the remedial scheme created by Congress and separates sea-based maritime employees entitled to Jones Act protection from land-based workers whose employment does not regularly expose them to the perils of the sea.
To qualify for seaman status, the individual must be assigned to a vessel or an identifiable fleet of vessels and must have a substantial connection with the vessel, and that connection must be substantial in both nature and duration. The focus of the status tests is to separate land-based and sea-based employment.
For those workers who perform duties both on land and on a vessel, the courts determine if the worker who has spent 30% of his employment on a vessel. If so, that worker may qualify as a Jones Act seaman.
Some courts do allow a deviation from the 30% guideline, for example when an employee is injured within a short time in a new assignment. In that case, a court may look at the intended mission and its duration.There is nothing in the act to indicate that Congress intended the law to apply only to conventional members of a ship's company. Employment, work duties and assignments determine if a worker is eligible for "seaman status" under the Jones Act. Today, seaman may include
Commeercial Diverswelders ( drillers and drill operators, pipe fitters,deckhands,floorhands, roughnecks, roustabouts, dredging crews, carpenters, cooks, messmen, and galley hands, hairdressers on cruise ships, bartenders, paint foremen, mates, waiter, sailors, coopers, handymen )
JONES ACT VESSELS
There are legal standards and fact intensive inquiries for determining whether a water craft is a vessel.
“Vessel” has been defined broadly by Congress as “every description of water craft or other artificial contrivance used or capable of being used as a means of transportation on water.” The water craft must float, but need not be engaged in transportation at the time of the incident. It need not have its own motive power. Thus, navigable structures that are moored, anchored, spudded down, jacked up can still qualify as vessels.
An employer need not be the owner if the vessel on which the worker is injured.
As with workers on ships, offshore workers may also qualify as a seaman if working at the time of the injury other floating or movable structures: ( a tanker, tug, barge, trawler, jack-up rig, semi-submersible rig, mobile offshore drilling rig or mobile offshore drilling unit (MODU), cruise ship, commercial fish boat, supply and crew boat, dredges, floating work platforms, pontoon rafts, floating dormitories, fixed offshore platforms, airboat vessels, floating casinos, drill tender )
JONES ACT DAMAGES
Once the employee has proven that the employer was negligent then the injured worker may recover damages incurred as a result of the injury-including past and future medical expenses, lost wages and fringe benefits, pain and suffering.
STATUTE OF LIMITATIONS
Suits under the Jones Act must be brought within three years from the date of the accident. Damages available to a seaman include past and medical expenses [as well as any other condition-related expenses], lost wages [past and future], pain and suffering, disfigurement, and mental anguish.
An unseaworthiness claim is related to the Jones Act, but is absolute and completely independent of the duty of the Jones Act to exercise reasonable care.
Unlike the Jones Act claims, which is against the seaman's employer, an unseaworthiness claim is made against the vessel's owner. In many cases those two will be the same. The unseaworthiness claim will bring the owner into a lawsuit as an additional source of recovery.
Unseaworthiness is a cause of action that enforces the ship-owner's absolute duty to provide to every member of the crew a vessel and appurtenances reasonably fit for their intended use. The admiralty doctrine of absolute liability for unseaworthiness is based on protection of seamen who sign articles for voyage and are then under absolute control of master with power to order them to do ship's work in any weather, under any conditions, using such equipment as may be furnished by shipowner.
A seaworthy vessel is one that is reasonably fit for its intended use, it should be a safe place to work and live. A seaworthy vessel should be equipped with appropriate safety gear and equipment, safe recreation facilities, and a competent crew. An unseaworthiness claim likewise takes into account unsafe conditions existing on the vessel including dangerous conditions arising during the voyage or created by employees or independent contractors. The courts have held that a vessel may be unseaworthy because: ( an unsafe method of work, an unfit crew, poor physical condition of the vessel, defective gear, appurtenances in disrepair, insufficient number of men assigned to perform a shipboard task, improper method of loading cargo, improper manner of cargo stowage, improper method of storing ship’s stores, negligent use of equipment, lack of adequate medical care, presence of hazardous materials on board the vessel, and in some circumstances, failure to warn of danger )
Also, a vessel is unseaworthy when the work method is not reasonably fit for its intended purpose, or where the vessel owner fails to train, instruct, or supervise the employees working on board the vessel. The shipowner's duty to furnish a seaworthy vessel extends to the procedures crew members are instructed to use for assigned tasks. The duty of a seaman is to do the work assigned, not to find the safest method for doing that work.
As with the Jones Act, an unseaworthiness claim must be filed within three years of the injury, and must be combined with a Jones Act claim.
CONTINENTAL SHELF OPERATIONS - THE OUTER CONTINENTAL SHELF LANDS ACT
When offshore oil drilling expanded in the Gulf of Mexico, Congress felt a need to establish a legal framework for that activity and passed the Outer Continental Shelf Lands Act ("OCSLA"). OCSLA applies to an injury suffered on structures that are either permanently or temporarily attached to the outer-continental shelf, i.e. oil and gas platforms.
The law applied to injuries occurring on an OCSLA situs is the adjoining state laws on personal injury and/or wrongful death. If OCLSA applies to a claim, the adjacent state law with regard to statute of limitations also applies. For example, Texas’ statute of limitations in personal injury claims is two years, Louisiana’s statute of limitations in personal injury claims is one year. There are, however, situations and circumstances that if substantially related to “traditional maritime activity” would allow the general maritime law’s three year statute of limitations to apply.
For worker’s compensation recipients, OCSLA designate the Longshore and Harbor Worker’s Act for all OCSLA workers.
LONGSHORE AND HARBOR WORKER COMPENSATION ACT
Commonly referred to as the "Longshore Act" or "LHWCA" is the statutory workers' compensation scheme that covers certain maritime workers, including most dock workers and maritime workers not otherwise covered by the Jones Act. In addition, Congress has extended the LHWCA to cover non-appropriated fund employees (i.e. AAFES employees), outer-continental-shelf workers, and U.S. government contractors working in foreign countries. Benefits under the Longshore Act are payable for any injury of illness arising out of covered employment without regard to fault. The disability benefits payable under the Act are typically higher than the benefits available to a covered worker under state workers compensation acts.
Under the LHWCA, the federal Department of Labor is responsible for administering any and all benefits. Covered workers are required to notify their employers about any work-related injuries or illnesses within 30 days or risk being barred from recovery. Additionally, an injured worker must file an LHWCA claim for benefits with the Department of Labor within one year from the date of the injury or its diagnosis.
The employer will have two weeks to either dispute the claim or begin making payments on it. When a dispute arises, the Act has procedures in place to facilitate the reconciliation of any conflict. If after these procedures are exhausted there is still no agreement, an administrative law judge (ALJ), acting under the authority of the Labor Department, will conduct a hearing over the matter and render a final judgment.
THIRD PARTY CLAIMS ARE AVAILABLE
Although an employer is generally immune from lawsuits under the LHWCA, an injured worker can pursue a claim against the employer if the employer was also the owner and operator of a vessel upon which he was injured and that injury was caused by the employer’s negligence in its capacity as the vessel owner. The lawsuit against the employer/shipowner does not affect the workers’ compensation benefits.
Additionally, the Longshore Act allows injured longshore workers, shipyard workers and other port workers to sue negligent ship owners, Marine Terminal operators and outside truckers. For longshore workers, if a ship owner negligently fails to turn over its ship in a condition that is reasonably safe for the longshoremen to work, the ship owner can be sued under the Longshore Act. Marine Terminal owners and operators can be held liable to longshore workers truck driver and other port workers for injuries caused by dangerous conditions such as overcrowding, trip and fall hazards, pot holes and defective or poorly maintained vehicles or other equipment. Outside trucking companies can be held responsible for the negligent operation of their trucks and tractors and can be sued when their drivers injure longshoremen or others.
For shipyard workers, if a third party ship owner (not your employer) negligently fails to turn over its ship in a condition that is reasonably safe for the ship yard work to be done, the ship owner can be sued under the Longshore Act. Third party contractors (any company other than your employer) can be held liable to shipyard workers for injuries caused by poorly maintained vehicles or other equipment they supply, dangerous conditions created by their work, or the negligence or their employees. If the shipyard owner/operator is not your employer it can be held responsible for dangerous conditions such as overcrowding, trip and fall hazards, or exposure to toxic chemicals or products.
Death on the High Seas (DOHSA)
“Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent, may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.”
Death on the High Seas Act (DOHSA) is another federal remedy provided whenever the death of a person is caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league, 3 nautical miles from the shore of any State.
A spouse, parent, or child, or other financially dependent relative may bring a DOHSA lawsuit for the recovery of monetary damages.
Under DOHSA, financial recovery awards are determined based upon the actual or future value of the financial benefit that would have been received from the seamen who perished.
This means that children can recover for the value of the care and guidance they would have received if their parent were still alive. A spouse can recover for the actual value of the financial contribution the decedent would have made to the family had he lived, less any amount determined to have provided for the care and maintenance of the decedent personally. This means the recovery awarded is typically reduced by the amount of money the decedent would have needed personally if he or she had lived. A spouse can also recover the monetary value of the household services the decedent would have provided. This portion of recovery is based on the number of hours the beneficiaries would have expected to receive in services from the decedent and calculated based upon an hourly rate for those services projected out for the decedent’s life expectancy.
DOHSA generally does not provide for “survival” causes of action. An exception to this rule applies when a party sustains an injury on the high seas and dies during the pendency of a personal injury action being pursued in federal court in admiralty.
“If a person die[s] as the result of such wrongful act, negligence or default as is mentioned in §761 of this title during the pendency in a court of admiralty of the United States of a suit to recover damages for personal injuries in respect of such act, negligence or default, the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this chapter for the recovery of the compensation provided in §762 of this title. 46 USC §765
Recovery is limited to pecuniary losses the family has suffered, i.e. earnings, and does not include damages for pain and suffering or mental anguish which are losses not measurable in money.
Other than entitlement for recovery under §765 of DOHSA, Congress has chosen not to authorize a survival action for a decedent’s pre-death pain and suffering in a case of death on the high seas.
STATUTE OF LIMITATIONS
DOHSA is very specific in terms of the statute of limitations for bringing such an action. The authorized personal representative of the members of the worker's remaining family has up to three years to file the action. This three-year mark begins to run on the date that the worker is killed.
GENERAL MARITIME LAW NEGLIGENCE
Recovery under the Jones Act does not affect a seaman or longshoreman’s rights against a third party who caused his injury. Similarly, non-seaman or non-seafarers (cruise ship passengers, recreational boaters, etc) have a cause of action for injuries or death resulting in a maritime setting or involving maritime activities.
The elements of a maritime negligence cause of action are essentially the same as land-based negligence. They include:
(1) The existence of a duty required by law which obliges the person to conform to a certain standard of conduct in order to protect others against unreasonable risks.
(2) A breach of that duty by engaging in conduct that falls below the applicable standard or norm. This breach is usually called by the rubric “negligence”; but “negligence” presumes the existence of element one, the standard of conduct.
(3) A reasonably close causal connection between the offending conduct and the resulting injury; this element is called “proximate cause.”
(4) Actual loss, injury, or damage suffered by the plaintiff.
Shipowners owe a duty of reasonable care to passengers (for a broad overview of this theory in law, see negligence). Consequently, passengers who are injured aboard ships may bring suit as if they had been injured ashore through the negligence of a third party. The passenger bears the burden of proving that the shipowner was negligent.
While the statute of limitations is generally three years, suits against cruise lines must usually be brought within one year because of limitations contained in the passenger ticket. Notice requirements in the ticket may require a formal notice to be brought within six months of the injury. Most U.S. cruise line passenger tickets also have provisions requiring that suit to be brought in either Miami or Seattle.