MOB tragedy underscores complexity of maritime law
An incident occurred last Tuesday off the coast of Massachusetts that highlights the dangers of working in the maritime industry, and also reveals the complex legal issues that come into play when an accident occurs on the water.
Jaime Ortiz, 43, fell off a 39-foot lobster boat based in Gloucester, Mass., prompting an immediate search that included boats owned by local harbormasters, police and numerous local fishermen. Ortiz has not yet been found, and no official statement has been made about his chances of survival. Local officials said the search would continue.
One of the central issues surrounding the incident is the fact that Ortiz reportedly fell overboard “about three miles” off the coast. The three-mile distance from the U.S. shore is critical to the case, because it will help determine which law(s) apply if, in fact, Ortiz is lost at sea and his surviving family decides to file a claim seeking damages and/or future earnings.
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.
Maritime safety procedures, if followed properly, can minimize the risk of accidents. Loads must be properly secured to prevent the risk of loads falling off of cranes and injuring workers. Maritime workers must also be trained about the risks they face while performing these activities. The importance of worker training and employee coordination cannot be underestimated. It is imperative that workers are trained to warn each other about the status of operations and any possible risk to those in the vicinity. Cranes must be fitted with alarm systems to warn workers that loads are being carried.