Recently in Commercial Fishermen Claims Category

February 14, 2011

Injured Crew Have a Claim Against Their Employer for Deciding the Keep the Vessel in Rough Conditions

Jones Act Claim Rough Seas.jpgUnder the Jones Act, an employer has the duty to provide its seaman employees with a reasonably safe place to work. An employer breaches that duty if it does not act with ordinary prudence. In other words, if a maritime employer disregards a danger that it knew or should have known and that danger causes a crewmember's injury, it will be found liable under the Jones Act. Generally, an employer violates the Jones Act when it fails to maintain an area such as a deck, fails to properly instruct an employee on how to safely go about performing his job duties or does not provide the crewmember with appropriate safety gear. These situations, though common, are not the only ways an employer can breach its duty owed to its crewmembers.

Another way an employer can violate the Jones Act is through navigational errors or omissions by the ship's captain. In a recent case, a court found that a jury can decide if the captain's decision of keeping the vessel "in the field" during rough weather instead of seeking protected waters constitutes a violation of the employer's Jones Act duty. In the case, the crewmember seaman fell down a ladder in heavy seas after being order by the captain to go inside the vessel. The court reasoned the decision to keep the vessel in rough seas combined with the captain's order for the crewmember to go inside is enough evidence for a jury to return a verdict in the seaman's favor and denied the employer's motion to find no liability.

October 30, 2010

Cruise Lines and Shipping Companies are Liable for Injuries under the Jones Act for Assigning Crew Jobs which are Too Physically Demanding

Crew Member Jones Act Lawyer.jpgGiven the nature of working aboard ships, many times captains or officers require crew to undertake jobs which they are not physically suited to perform. Often times, crew members are already sick or injured, and due to short staffing, are required to continue their job duties. Our maritime attorneys have represented crew members whose doctors restricted the amount they could lift and hours they could work; however, when they returned to the ship for "restricted duty", their employers required them to work as if no physical restrictions were ordered.

The question these injured crew members have is whether their employers are liable when they are hurt performing a job that is too physically demanding. The answer is YES.

The Jones Act requires cruise lines and shipping companies to use reasonable care to prevent injuries to crew members serving aboard their vessels. Courts have routinely found the Jones Act imposes a duty upon employers to assign seamen to jobs for which they are reasonable suited. If a crew member is injured performing a job for which he/she is not physically capable of doing, the employer is liable for the injury. Damages under the Jones Act include, pain and suffering, loss of the enjoyment of life, lost wages and disfigurement.

September 19, 2010

Employers are Liable to Crew Members for the Medical Malpractice of Shoreside Doctors

Our lawyers routinely handle cases where the crew members' conditions worsen or new injuries occur due to the substandard medical treatment of the doctors selected by their employers.

Doctor.jpgUnder maritime law, an employer has the duty to provide prompt, proper and adequate medical treatment to its sick and injured crew members. This means an employer is required to promptly select a suitable doctor for its injured crew members. Should the employer fail to carry out its duty, and the crew member's condition worsens or new injuries arise, the employer is liable for those injuries. For example, should a crew member sustain an eye injury, and the employer selects a general practitioner who is not suitable to treat an eye injury, the employer will be liable should the crew member loose eyesight.

Furthermore, an employer is obligated to closely monitor the crew member's medical care and intervene if the doctor provided is inadequate. This means if the doctor is not properly diagnosing and/or treating the sickness or injury, the employer has the duty to find another doctor who can properly care for the crew member.

In recent years, courts have begun to find employers strictly liable for the medical malpractice of the doctors they select even though there was nothing in the doctor's past which could alert them that the doctor may not be suited to treat the injured crew member.

The bottom line is crew members have the right to be sent to qualified doctors should they get sick or hurt when subject to the call of duty. If the employer fails to provide quality doctors, they will become liable for any poor result.

Continue reading "Employers are Liable to Crew Members for the Medical Malpractice of Shoreside Doctors" »

September 15, 2010

Commercial Fishermen Wrongful Death and Survival Claims under the Jones Act

Shrimp Boat Wrongful Death.jpgCommercial fishing is the most dangerous occupation in the United States. The Centers for Disease Control and Prevention reported during 1992-2008 an average of 58 deaths occurred annually. This equates to a staggering 128 deaths per 100,000 workers! Thankfully, maritime law protects the rights of the loved ones of fishermen who unfortunately lost their lives while working the sea.

Jones Act Negligence

One of the methods families of deceased fishermen can seek recourse is through the Jones Act. The Jones Act is a federal statute which allows the personal representative of fishermen's estates, spouses and dependent children to bring negligence claims against the employers. A lawsuit brought on behalf of a fisherman's estate is known as a "Survival Claim". A lawsuit brought by the family of a deceased fisherman is a "Wrongful Death" claim. Survival and Wrongful Death claims under the Jones Act can only be brought if the accident occurred upon inland waterways or within 3 nautical miles from shore. Deaths resulting from accidents occurring beyond 3 nautical miles can only be brought under the Death on the High Seas Act. (See our article entitled Commercial Fishermen Wrongful Death and Survival Claims under the Death on the High Seas Act)

Under the Jones Act, an employer owes the duty to exercise reasonable care and prudence in providing its employees with a reasonable safe place to work. It is the plaintiff's burden to prove the employer breached its duty and the breach was the cause of the death. While the plaintiff must show the employer's negligence was the cause of death, the law holds the plaintiff need only show the breach of duty contributed in any way, no matter how slight, to the death will be deemed sufficient for recovery under the Jones Act.

Damages for Jones Act Wrongful Death Claims

Only "pecuniary damages" are recoverable under a Jones Act for wrongful death claim. These are damages the family could have expected to receive from the fisherman if he lived. Such damages include:

Loss of Support

Loss of support and services includes all financial contributions the decedent fisherman made to his family had he lived. To recover loss of support, it is necessary for the beneficiary to show dependency on the decedent.

Loss of Services

Loss of services includes the household services performed by the deceased fisherman and an award is usually measured by the costs of paying someone else to perform the same services.

Loss of Nurture and Guidance to Minor Children

Loss of nurture to minor children damages are intended to compensate for the loss of parental guidance and intellectual and moral training to a child.

Funeral Expenses

Funeral expenses are recoverable to the extent they have actually been incurred by a family member.

Lost Inheritance

Loss of inheritances are recoverable where the family member can prove the probability of an inheritance and the amount that would have been inherited

Damages for Jones Act Survival Claims

In addition to pecuniary damages allowed under its wrongful death provisions, the Jones Act also provides for the recovery of non-pecuniary damages under its survival provisions. Non-pecuniary damages may only be awarded to the personal representative of the fisherman's estate on behalf of the family. Any amount of non-pecuniary damages awarded does not become part of the estate's general assets, is not subject to debts and is not distributed under any statue of descent destitution. Non-pecuniary damages include:

Conscious Pre-death Pain and Suffering

These damages compensate for the pain and suffering the fishermen endured before death. However, to recover these damages, it must be proved that the fisherman was conscious between the time of his injury and death.

Lost Past and Future Wages

These are wages the fisherman would have earned between the time of his injury and death as well as wages he would have reasonably been able to earn though the course of his life.

Pre-Death Medical Expenses

All medical and hospital expenses actually paid by the fisherman between the time of his injury and death.

September 8, 2010

Crew Members Who Were Not Paid in Full May be Entitled to 2x the Wages for Each Day Payment is Delayed

batch_of_dollars.jpgWe are often contacted by crew members who were discharged from employment but were not paid all owed wages. Should this happen, you may be entitled to 2 times the wages for each day the ship owner fails to make payment.

Crew Members Employed on American Ships

The Seaman's Penalty Wage Act provides crew members serving aboard American Ships who are discharged in any port without being paid all earned wages within 4 days the right to sue the ship owner for earned wages plus 2 days wages for each day payment is delayed! This statutory right is provided to both American and non-American crew members. For example, a crew member from Honduras who was discharged in Miami without being paid all earned wages can bring a claim under the Penalty Wage Act.

Crew Members Employed on Non-American Ships

The Penalty Wage Act also provides the above remedies to crew members serving aboard non-American ships. The only difference is, the crew member must be discharged at a United States port.

Wages Included under the Seaman's Penalty Wage Act

Only certain types of owed money are considered "wages" under the Penalty Wage Act. Wages included under the Act are all compensation owed for service aboard the ship including bonuses, vacation pay, annual allowances, tips and severance pay. Consequently, if the crew member has not been paid the above compensation within 4 days of discharge, he is entitled to bring a claim under the Act. However, courts found contributions to union health, retirement/pension plans, maintenance and cure benefits, and vacation trust funds are not "wages" under the Act. As such, failure to pay these types of benifits cannot trigger the Penalty Wage Act.

Crew Members Exempted from the Seaman's Penalty Wage Act

Unfortunately, not all crew members may take advantage of the Seaman's Penalty Wage Act. Specifically excluded from the Act are ship's masters, crew members working aboard yachts and fishing vessels as well as crew members serving aboard ships whose voyage does not call on a non-American port. However, any other type of crew members not specifically excluded from the Act can bring a claim for double wages.

If you are owed earned wages and think you have a claim under the Seaman's Penalty Wage Act, feel free to contact our experienced maritime lawyers who specialize in crew member wage disputes.