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December 27, 2010

Fishermen Still Protected by Maritime Law after the Voyage's Completion

Jones Act Commerical Fisherman Injury.jpgAn interesting situation arises in maritime law when a commercial fisherman finishes the voyage, is paid and then injured when he returns to the boat to collect his belongings. The question often arises is whether the commercial fisherman is protected by the Jones Act and entitled to medical treatment under the ship owner's maintenance and cure obligation. The answer is Yes!

Maritime law holds commercial fishermen still retain their "seaman status" for a reasonable period of time after their employment ends and even if they leave the vessel. For example, a court held a fisherman who completed the fishing trip but was injured when he return to the boat to collect his personal effects is still a seaman. As such, he was entitled to remedies under the Jones Act, doctrine of seaworthiness as well as payment medical expenses and a living stipend under the ship owner's obligation to provide maintenance and cure.

If you are a commercial fisherman and were injured after the completion of the voyage, you may still be protected maritime law. If you have any questions about your rights, do not hesitate to contact a qualified maritime lawyer.

September 25, 2010

Cruise Lines or Ship Owners are Responsible to Provide Crew Members Medical Care for Injuries Occurring when on Sick Leave

Sometimes crew members develop additional injuries or illnesses while on sick leave. Often times these new injuries or illnesses have nothing to do with the shipboard accident which placed them on sick leave in the first place. The question on the minds of these crew member is does the cruise line or ship owner have to pay for the medical treatment of these new injuries or illnesses? The answer is YES.

ankle xray.jpgUnder the maritime law doctrine of "maintenance and cure", a cruise line or ship owner must provide a daily living allowance (Maintenance) and medical treatment (cure) to its crew members who were injured or when an illness manifested itself while subject to the call of the ship. This duty to provide maintenance and cure lasts until the crew member reached maximum medical cure. Maximum medical cure is simply the stage were the injury or illness is resolved or there is no further medical treatment that could better the crew member's condition.

Courts have determined when a crew member is on sick leave, he is technically still subject to the call of the ship because when he gets better, he will go back to work. As such, these courts reasoned that since the crew member is subject to the call of ship while on sick leave, the cruise line or ship owner must provide maintenance and cure for any additional injuries or illnesses arising during that period. For example, if a crew member is on sick leave for bronchitis and on the way to the supermarket is hit by a car, the cruise line or ship owner must provide maintenance and cure for any injuries resulting from the car accident.

Should the cruise line or ship owner not provide maintenance and cure benefits for the additional injuries or illnesses, a crew member can sue for the failure to provide maintenance and cure claim as well as a tort claim under the Jones Act. Under these claims, the injured crew member can seek damages in the form of:

  • Payment of medical bills for the injury;
  • Payment of certain living expenses until the point of maximum medical cure;
  • Compensatory damages for the worsening of the condition (pain and suffering, lost of the enjoyment of life, disfigurement and loss of earnings); and,
  • Punitive damages.

September 21, 2010

Commercial Fishermen Wrongful Death and Survival Claims under the Death on the High Seas Act

It is common knowledge that commercial fishing is the most dangerous and deadly job in the United States. Thankfully maritime law provides benefits to those who lost a loved one while working the sea.

Fishing Boats.jpgWe recently posted an article discussing commercial fishermen wrongful death and survival claims which can be brought against their employer under the Jones Act. As the article explained, the Jones Act applies to commercial fishermen wrongful deaths occurring upon inland waterways or within 3 nautical miles from shore. But what happens if an accident occurs beyond 3 nautical miles? Maritime law provides an entirely different statute for such claims.

Death on the High Seas Act

The Death on the High Seas Act ("DOHSA") applies to all maritime deaths resulting from accidents occurring beyond 3 nautical miles from shore. Unlike most wrongful death statutes, DOHSA applies to the actual site of the accident, not where the death actually occurs or where the wrongful act causing the accident may have originated. Thus, if an accident occurs beyond 3 nautical miles from shore, but the fisherman ultimately dies within 3 nautical miles or even in a hospital on shore, DOHSA applies.

Unlike the Jones Act, which only allows for the fishermen's employer to be sued, DOHSA allows an estate or family member to sue any responsible party. This may be the fisherman's employer, but also the boat owner (if different than his employer), vessel manufacturer, equipment installer/manufacturer, the captain of another boat if the death resulted from a collision and any other person, company or government who contributed to the accident which resulted in the death.

Like most maritime claims, DOHSA lawsuits must be brought within 3 years from the date of the accident and can be brought either in state or federal court. Though DOHSA does not provide a right to a jury, a jury can be requested if the case is brought in state court or in federal court if diversity jurisdiction is avilable.

Damages under DOHSA

Unlike the Jones Act where a survival claim can seek non-pecuniary damages, DOHSA claims are limited to only pecuniary damages such as:

  • Loss of Support;
  • Loss of Services;
  • Loss of Nurture, Guidance and Care to Minor Children;
  • Funeral Expenses; and,
  • Loss of Inheritance.
(For a more detailed discussion between pecuniary and non-pecuniary damages, see our article entitled Commercial Fishermen Wrongful Death and Survival Claims under the Jones Act)

August 25, 2010

Florida Supreme Court Allows Commercial Fishermen to Recover Lost Profits Caused by Polluters

Shrimp Boat.jpgIn the landmark decision of Curd v. Mosaic Fertilizer, LLC., the Florida Supreme Court recently determined commercial fishermen have both statutory strict liability and common law negligence claims to recover damages caused by discharge of pollutants into Florida's waters. Given the recent events in the Gulf of Mexico, marine pollution is on the forefront of the Nation's mind. As explained below, this case provides recourse to those whose lives and businesses were harmed by the pollution of Florida's waters.

Strict Liability

The Florida Supreme Court first determined Florida's Pollutant Discharge, Prevention & Removal Statute gives fishermen who lost revenue as a result of pollutant discharge a strict liability cause of action against the polluter. This means fishermen need only prove:

  1. The defendant discharged pollutants which entered Florida's waters; and
  2. The pollutants caused the fisherman economic damages.
The fishermen need not prove the polluter was negligent in the care, handling or disposal of the pollutants in order to recover. This is a major victory for fishermen because they have a relatively light legal burden of proof and can more easily recover damages from polluters than they would under a common law negligence claim.

Common Law Negligence

In addition to finding commercial fishermen have a strict liability claim under the Florida statute, the court also determined they have a common law cause of negligence. The court held Florida common law implies that companies owe a duty keep, store and dispose of pollutants in a reasonably safe manner so as not to economically harm the state's fishermen. Should a company breach this duty, it will be liable for the economic damages of the fishermen.

Broader Application

Though this case deals with commercial fishermen, it has a boarder holding. As worded, the opinion provides these rights to any person or company damaged by the discharge of pollutants! Theoretically this means:

  • Hotels,
  • Boat and personal water craft rental businesses,
  • Recreational fishing guides,
  • Charter boat companies,
  • Nautical and marine sightseeing businesses,
  • Seafood restaurants,
  • Beach concessionaires, and,
  • Any other business that lost revenue due to the pollution.
Given the disaster in the Gulf of Mexico, this holding provides many of Florida's gulf coast business affected by the spill recourse against BP and Transocean.

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