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Marine injuries open employers to bigger liabilities

Posted On: Nov. 8, 2018 3:00 AM CST

maritime worker

HOUSTON — Maritime workers can obtain significantly higher benefits for work-related injuries but they must meet specific requirements to file claims outside of state workers compensation systems, legal experts say.

Defining what is a maritime environment and whether a worker is deemed a seaman or other type of worker require analysis of specific circumstances, statutes and case law, they said during a session of the International Risk Management Institute Inc.’s Construction Risk Conference in Houston on Wednesday.

While for some companies the nature of their business makes clear that they are governed by maritime laws, for others it can be only while they are contracted for one job, said Mark J. Spansel, a partner at Adams and Reese LLP in New Orleans.

“Different exposures occur when you work on near or around navigable water,” he said.

To identify what remedies might apply to an alleged maritime injury, courts consider three main factors, said Timothy M. Brinks, who is also a partner at the firm. Those factors are: the status of the injured person, the status of the defendant employer and the place of the injury.

To qualify for benefits under the Jones Act, part of the Merchant Marine Act of 1920, the injury must happen to an injured seaman, the action must be brought against the employer, and it must allege negligence. Jones Act claims can be filed in state or federal court, Mr. Spansel said.

Under established case law, to qualify for seaman status “you have to be more-or-less permanently assigned to a vessel or a fleet of vessels,” he said, “and the individual’s duties have to contribute to the function of the vessel or the accomplishment of its mission,” he said.

An employee is not considered a seaman if less than 30% of his or her work time is spent in the service of a vessel, Mr. Spansel said.

Legal precedents also determine what is classified as a “vessel,” Mr. Brinks said.

“The traditional definition is any craft or structure that is designed to carry people or things over water,” he said. But courts still are deciding what is and what is not a vessel. For example, courts have determined that dredging barges are “vessels” because there is a practicable possibility that the crafts could be put out to sea, he said.

However, crafts that are permanently moored, such as riverboat casinos, are not considered vessels for Jones Act claims, Mr. Brinks said.

If an injured worker is determined to be a seaman, the benefits they qualify for under the Jones Act include loss of past and future wages, impairment of future earning capacity, medical expenses, and compensation for past and future pain, suffering, disability, humiliation and mental anguish, Mr. Spansel said.

Seaman can also seek damages for workplace injuries by filing suit alleging unseaworthiness of a vessel, he said. “There has to be some condition of the vessel that is a breach of reasonable fitness,” he said.

Damages for unseaworthiness can cover loss of past and future wages, impairment of future earnings capacity, medical expenses, past and future pain, suffering, disability, humiliation and mental anguish and loss of consortium or society, Mr. Spansel said.

A third course of remedy open to injured seaman are “wages, maintenance and cure” claims, which provide wages owed until the end of a voyage, a living allowance and medical expenses, Mr. Brinks said.

Defenses open to employers against wages, maintenance and cure claims include willful misconduct and fighting, concealment of a prior disability and gross intoxication but not “ordinary” intoxication, he said.