Jones Act Maritime Lawyer : Houston Jones Act & Maritime Injury Lawyer & Attorney : Arnold & Itkin Law Firm : Offshore Injury, Maritime Law : Texas, Louisiana, Alabama, Mississippi, Florida

Under maritime law, specifically according to the Unseaworthyness Doctrine, the owner of a vessel owes it to the members of the boat’s crew to provide a seaworthy vessel. Failure to do so makes the owner liable for compensation to any seaman injured on the unseaworthy vessel. Potential damages could include pain and suffering, loss of wages (current and future), retraining costs and the cost of medical and nursing services for the injured seaman.

A vessel can be deemed unseaworthy for a number of reasons, including but not limited to:

• Inadequate or improperly trained crew
• Defective, insufficient or unsafe tools and/or equipment
• Faulty design
• Unsafe work procedures, practices or conditions
• Improper training
• Excessive work hours
• Lack of qualified supervision

If a crewmember is injured, and a maritime attorney can prove the vessel on which the crewmember was injured was not seaworthy, then the owner of the vessel can be held liable for several forms of compensation.

Shipowners who operate crab boats off the shore of Alaska run a higher risk of having their vessels deemed unseaworthy, because the often-rough seas and the cold air and water conditions increase the chance that a maritime lawyer could prove the conditions to be excessively dangerous. If the owner of the vessel can’t prove that the necessary steps were taken to care of the ship’s crew, the chances that a court would rule in an injured seaman’s favor would increase. In addition to pain and suffering, and some form of compensation to cover lost wages (including lost future wages, if injuries require long-term absence from work), the shipowner also is obligated under admiralty law to provide maintenance and cure: free medical treatment until the injured seaman reaches “maximum medical cure” and basic room and board expenses until they either are able to return to work or the period of the voyage ends.

Not only do the rough water conditions make accidents a legitimate possibility, the cold temperatures above and below the surface also increase the likelihood of illness and cold-related conditions like hypothermia.

Also coming into play are maritime laws like the Death on the High Seas Act (DOHSA) and the Jones Act.

If an accident occurs more than three miles offshore (in international waters), the case could fall under DOHSA protection. DOSHA was passed in 1920 so that the surviving family members of seamen who died while working in international waters could receive compensation for the loss of the deceased’s future earnings.

However, it’s more likely that the case of an injury to a seaman working in the Alaskan crabbing fleet would fall under the Jones Act, which applies to accidents on either side of the three-mile boundary, as long as the vessel on which they were working was on navigable waters. To qualify for Jones Act coverage, an injured Jones Act seaman or his surviving family must prove the seaman was a U.S. citizen and a regular member of the vessel’s crew (a label given to those who work at least 30 percent of their available working time on a single vessel or fleet of vessels under common ownership). If crewmembers are aboard for extended periods of time for a long trip, they obviously fall under the required “regular crew member” label, as is required in all Jones Act claims.

This year’s crabbing fleet is expected to be larger than in years past. Prior to the start of crabbing season last week, the Coast Guard Marine Safety Detachment in Unalaska conducted exams aboard 41 of the 93 vessels. No overloading of pots was noted. A few deficiencies — including expired life rafts, hydrostatic releases and Electronic Position Indicating Radio Beacon batteries — were found during the Coast Guard safety checks, but were corrected prior to the vessels getting underway. Proof of a favorable Coast Guard inspection could be useful evidence in any claim filed against a shipowner.

In the case of the Alaskan crabbing fleet, more than 20 fishermen attended Coast Guard safety training at the community pool and local harbor in Unalaska, where topics included proper use of life rafts, survival unit and flare training. Twelve fishermen attended the Unalaska damage control training and several vessel captains requested that Coast Guard examiners conduct emergency drills aboard their vessels prior to the start of the crabbing season.

No amount of training and safety preparation, of course, guarantees the elimination of accidents, so in the event of an accident, seamen or their surviving family will need representation by an accomplished maritime lawyer who specializes in cases dealing with the Jones Act and maritime law.
 

Also worth considering:

• Does the boat have a policy about crew members wearing life jackets? If so, why wasn’t the missing man wearing one? If such a policy was in place and he simply chose not to, could that limit, or perhaps eliminate, the shipowner’s liability. However, ships are required to have life jackets for each person on board, and if a maritime attorney can prove that not enough life jackets were provided, the liability in the case likely would be judged to have fallen back on the vessel’s owner.
• If life jackets were available and not worn, could the water conditions dictate the level of liability for the owner? A maritime attorney might argue that mild water conditions reduced the need for the missing man to wear his life jacket, but if the vessel has a known or posted policy, that argument likely would carry less weight.
• Was Si Se Puede seaworthy for the conditions in which it was operating? If the vessel were judged unseaworthy, the shipowner could be deemed negligent, and as such, would likely be liable to compensate the missing man’s surviving family.
• Did the vessel have adequate gear for handling a man overboard situation, such as a throwable PFD, an emergency beacon (EPIRB), and a MOB recovery system (e.g. Lifesling)? Was the crew adequately trained and prepared for a MOB emergency? Was a crew member designated as a watchkeeper? All of these could have a bearing in determining whether any negligence was involved in this accident or not.
  
  Since the missing seaman was the master of Si Se Puede, any claims seeking compensation likely would fall under the Jones Act. In order to seek Jones Act coverage, a seaman or his surviving family must prove that the seaman was a “regular” member of a crew in service to a vessel on navigable waters. The current court ruling defines “regular” crew members as employees who spend 30 percent (or more) of their available working time on a single vessel or fleet of vessels under common ownership. Since the accident occurred approximately 20 miles off the coast, the Death on the High Seas Act (DOHSA) would also apply. However, an experienced maritime lawyer would likely prosecute a Jones Act claim due to the higher awards provided to Jones Act seamen or their surviving families under that statute.

Death on the High Seas Act vs. the Jones Act

If Ortiz is lost at sea and the incident occurred more than three miles from shore, his family may seek remedy under the Death on the High Seas Act (DOHSA). DOHSA was passed in 1920 to make it easier for surviving family members of seamen who died while working in international waters to receive compensation for the loss of future earnings by the deceased. If the accident occurred inside the three-mile boundary, Ortiz’s family may ask a Jones Act lawyer to seek remedy under the Jones Act. The Jones Act provides compensation to seamen in the case of an injury or the families of seamen who lose their lives while in service to a vessel, regardless of how far they were offshore when an accident occurs.

Qualifying for Jones Act protection

There are certain qualifiers that affect the Ortiz case, and others like it, in addition to merely the distance between the shoreline and the location of any such incident. DOHSA applies to anyone (e.g. boat owners and operators, crew, passengers, temporary employees, etc.) lost at sea more than three miles offshore. To qualify as a Jones Act seaman, the injured party only has to be a U.S. citizen and a regular crew member of a Jones Act vessel. In order to seek Jones Act coverage, a seaman or his surviving family must prove that the seaman was a ‘regular’ member of a crew in service to a vessel in navigable waters. The current court ruling defines ‘regular’ crew members as employees who spend 30 percent (or more) of their available working time on a single vessel or fleet of vessels under common ownership.

If Ortiz was a regular member of the crew, his family and/or legal representation could demonstrate that to the court through payroll statements, employment records, tax forms, etc. If Ortiz’s body is recovered or if he is presumed dead, and he is proven to have been a regular member of the crew and that he died as a result of negligence by the boat’s owner or crew, his family may be able to expect compensation through the Jones Act.

However, if Ortiz is not a U.S. citizen, or can’t prove that he is a regular member of the crew, or if he is a temporary employee, his case would fail to qualify under the Jones Act. The point is significant because Jones Act claims sometimes offer significant awards to the families of victims, who can sue for punitive damages, pain and suffering, future earnings of the deceased, etc. If Ortiz fails to meet the requirements of a Jones Act seaman and if the incident occurred inside the three-mile barrier from the shore, the victim’s family could come up empty in its attempts to seek compensation under maritime law. But if he meets all of the criteria and the accident is shown to have occurred more than three miles from shore, his surviving family members can file claims under both the Jones Act and DOHSA.

Proof of negligence

To successfully prosecute either a DOHSA or Jones Act case, the victim or his surviving family must prove negligence, either on the part of the boat’s owner or any other member of the crew. If negligence can be proven, Ortiz’s family could qualify for protection under the Jones Act and DOHSA if the incident occurred more than three miles offshore. Negligence could be found in a number of areas, including inadequate training of crew, failure to provide proper safety equipment, allowing a crew member to perform duties that exceed previous training, etc.

Also factoring into the equation is the fact that since both laws fall under maritime law, a victim’s family can file claims immediately, rather than having to wait a up to seven years for a civil court to declare the victim legally dead (also known as “death in absentia”).

A proven maritime lawyer will know the specifics of DOHSA, the Jones Act and their application to the Ortiz case, and has the knowledge to discern whether negligence was involved. An accomplished maritime attorney often will suggest filing immediately in order to allow as much time as possible for the case to be brought to trial before any relevant statute of limitations expires.