We practice maritime personal injury law. It is a distinct area of legal practice . Just like there are divorce lawyers, corporate lawyers, drunk driving lawyers and patent lawyers, there are attorneys that practice maritime personal injury law. You may know someone who was injured diving and got the royal run around. A reason for that may have been that person's inability to locate a lawyer who practices in this area. Fear no longer; now you know one. The days of the one-way ticket home after an injury , begging for the medical and compensation you are owed, and then taking it up the ying/yang are over. I have been certified by the Maritime Law Association of the United States to be qualified as a Proctor in Admiralty.
Diver/crewmembers are considered wards of the Admiralty Court whose rights are to be jealously protected, just like the court protects the rights of a minor. The Maritime law gives diver/crewmembers more protection vis-a-vis personal injury than nearly every other class of worker. The rights of onshore laborers have little bearing on diver/crewmembers.
To be a diver/crewmember, one must be a diver substantially connected and contributing to the function of a vessel in navigation. Commercial divers who 30% or more of the time have a substantial connection to a vessel in navigation and whose duties contribute to the function of the vessel are most often classified as a crewmember. Professional divers working off a dive vessel or a vessel manned and provisioned for commercial diving operations usually meet this test. Those diving off a fixed platform, wharves, docks or other land based platforms do not. Either way, we will represent you.
Vessels manned by a crew and capable of navigation are covered. To fit that description, a vessel can be docked yet still be "in navigation", if it is manned, equipped and ready to go. Even barges can qualify.
The Jones Act is a negligence statute originally passed in 1915 in an effort by the U.S. Congress to protect the rights of crewmen injured, taken ill or killed in the course of their employment on water or land. In 1949, the Supreme Court spoke to the policy underlying the law, as follows: "It was designed to put on the . . . industry some of the costs for the legs, eyes, arms, and lives . . . consumed in its operations." Over the years, thousands of court decisions have interpreted the Jones Act bringing it to its present state where any negligence on the part of the employer which causes or contributes to a crewmember's injury, however slightly, is sufficient upon which to base liability.
Under the Jones Act, the employer must exercise reasonable care to provide a safe place to work. The entire dive environment is taken into consideration, including the task being performed, space, tools, equipment and personnel provided, and conditions under which the dive must be performed. Company, industry, Coast Guard and/or OSHA regulations may be considered. The employer has a duty to correct and/or warn of unsafe conditions of which it does, or should, know. Some examples of such negligence are the improper use of decompression tables, use of an unsafe or experimental table, failing to adhere to the particular job applications of a dive companys safe practices manual, and/or placing divers in an operational setting that presents an unreasonable risk of danger.
The doctrine of seaworthiness mandates that a vessel, her crew, equipment, parts and appurtenances be reasonably fit (and safe) for their intended use as it specifically pertains to the injured diver-crewmember. Unseaworthiness can arise from insufficient manpower for a task, defective equipment, using a vessel not fitted for diving or many other unsafe conditions; it does not mean that the vessel is about to sink, however. The vessel owner is responsible for injuries caused by unseaworthy conditions, whether or not it knows of them. Most often, the employer is considered as the owner.
A Safe Practices Manual containing rules and regulations must be published and made available by dive companies at the work site. If you don't have one, get it. If you have one, keep it.
If a diver/crewmember proves a case of negligence, or unseaworthiness, compensatory damages are payable; however, the employer or vessel owner can claim as a defense that a diver's negligence contributed to his own injury. That is called comparative negligence.
In such a case, the employer or vessel owner claims that the diver failed to exercise reasonable care for his own safety. If proven, an award is reduced by the percentage of comparative negligence.
For example, if a diver is entitled to collect $100,000.00 as a result of injuries, but the jury finds 10% comparative negligence, the award would be reduced to $90,000.00.
If violation of a Coast Guard, or sometimes an OSHA regulation caused the injury, however, then comparative negligence is not an available defense.
That is why it is so important to not allow yourself to be wrongfully blamed for an injury in an accident report, or in a statement given to an insurance representative or company claims agent.
Maintenance and cure are automatic periodic payments payable for any illness or injury sustained by a diver/crewmember in the service of the ship, until maximum medical improvement is reached whether or not there is negligence or unseaworthiness (unless the injury or illness results from the willful misconduct, such as drunkenness, of the crewmember). Comparative negligence is not a defense. Cure is payment for necessary medical treatment. The amount of maintenance is supposed to equal living expenses, inclusive of lodging payments, food, utilities, basic phone, transportation, etc. If the employer pays too little, where worthwhile, we go to court right off the bat to get maintenance increased. Federal circuit courts in San Francisco, New Orleans, Cincinnati and Atlanta have held that maintenance rates contained in collective bargaining [union] agreements cannot be increased, but the federal circuit court in Philadelphia, the federal district courts in New York, and the Washington State Supreme Court have allowed increases for unionized seamen. When representing unionized divers receiving a starvation rate of maintenance from companies doing business in New York, Washington and/or Pennsylvania, we often follow the money and file lawsuits for maintenance and cure there even if the injury occurred somewhere else, in order to go for the more just amount. Some employers supplement inordinately puny maintenance payments with advances or loans, but guess what, companies typically try to use those as credits to their benefit and AGAINST YOU in tallying up a final settlement. Our response to that is NO WAY. When we talk settlement, our math counts NEW MONEY, not stale credits.
If you're injured in the course of your employment as a crewmember/diver, the Jones Act applies to the exclusion of the no-fault Longshoremen's and Harborworker's Compensation Act (LHWCA). Employers may try and trick an injured crewman into believing he is only entitled to LHWCA weekly benefits, or State workers' compensation laws which almost never apply. Don't be fooled: forewarned is forearmed. Scheduled benefits under the LHWCA, are often far less than potential recoveries under the Jones Act. This perhaps is one of the greatest travesties of justice perpetrated on divers. If it turns out, however, that you are not a crewmember and are covered by the LHWCA, don't worry. We will help you navigate those legal shoals. Recoveries under the LHWCA can reach the six figures, depending on the case.
Jones Act, unseaworthiness and/or maintenance and cure liability can apply to dysbaric osteonecrosis, divers' asthma, heart disease, arthritis, pneumonia, dermatitis, and other diseases and illnesses when caused, contributed to, or aggravated by negligence, unseaworthiness, or given rise to while in the service of the ship.
Be it North, South, East or West, federal law is generally the same, but there are some regional differences; for instance, rules concerning how to calculate lost future earning power can be different in New Orleans from Detroit, from Miami, from Memphis, from New York, from Seattle, from Houston, from San Francisco, from Mobile, from Boston, from St. Louis, from Chicago, and so on. See also, the Maintenance and Cure section for regional differences in the payment thereof to unionized diver-crewmembers, and the Workers' Compensation section. Companies are subject to jurisdiction in any federal district in which they are doing business. We select the court best suited to prosecute your case in order to fully and completely obtain the justice you deserve.
Other than for maintenance and cure, an injury or illness does not automatically entitle an injured diver/crewmember to money damages under the Jones Act or unseaworthiness doctrine. Before a diver/crewmember is entitled to compensatory damages, it must be proved that the injury or illness results from employer negligence or unseaworthiness.
If you had a pre-existing condition but were medically fit to dive until an injury made the condition disabling, compensation can be payable for the aggravation of the underlying condition and the resulting disability. In other words, that a condition was preexisting does not automatically mean that you are not entitled to compensatory damages. If you fail to disclose a pre-existing condition in a company questionnaire or physical, you may deprive yourself of maintenance and cure benefits down the line if the condition acts up. BE UP FRONT WITH YOUR EMPLOYER.
Compensatory damages equal compensation that can far exceed lost wages, which includes lost savings plans, medical insurance, life insurance and pension plan contributions. Physical and mental pain, suffering, mental anguish, physical disability, inability to engage in social and recreational pursuits previously enjoyed, fear of future surgery, impairment of bodily function, embarrassment, humiliation, scarification, lost future earning power, and found - the value of room and board on the vessel, are but some of the components of damages allowed under the maritime law. The elements of possible recovery in a particular case generally depend on the nature of, and the way an injury has affected the crewmember. If you are injured and return to work and settle with the company on your own for lost wages only, your glass may end up being only half full. Check with me first. BETTER SAFE THAN SORRY.
If a cerebral arterial gas embolism or decompression sickness occurs, the on-site support team and supervisor must render treatment under the appropriate table, including serial monitoring of neurologic symptoms during ascent and descent at different stages using the treatment table, along with consultation with a shoreside physician to make sure the right tables are being used. Employer failure in that regard is negligence.
You have the right to pick your own doctor under the Jones Act. We are automatically suspicious when a diver/crewmember is treated by a doctor selected by the employer because being picked and paid for by the employer, a potential conflict of interest exists in situations where your best medical interests might differ from the employer's best economic interest. This typically comes into play when doctor decisions have to be made concerning ability to return to work, work restrictions, whether an accident caused a disability, and/or permanent impairment. When in doubt, move out, and get your own doctor with undivided loyalty. An employer that requests it, however, is entitled to get a second opinion examination prior to a contemplated surgery before being responsible for it as cure.
Once it is established that the employer or shipowner is liable for the initial injury, that responsibility extends to injuries caused by any medical malpractice of a health care provider of necessary treatment for the injury. If the employer selects the doctor for treatment, it is responsible for any malpractice whether or not negligence or unseaworthiness caused the initial injury.
The statute of limitations for maritime torts is three (3) years from either (1) the date of injury, or (2) when you become aware of an [occupational] injury and its cause, unless you were promised by the company that you would not be held to the three (3) year limit. But, if employer liability is sought for the malpractice of an employer selected doctor, the State statute of limitations apply. The limitation period[s] under the LHWCA are different. If you think that you have a case, but it occurred longer ago than the statute of limitations, I would have to go over all the facts before giving opinion as to whether or not the time for the statute of limitations to lapse has occurred.
An employer may not discharge a crewmember (1) in retaliation for the filing of a Jones Act claim, or (2) for testifying or giving information in support of a fellow diver/crewmember's case, or (3) for reporting a statutory or regulatory violation to the Coast Guard or OSHA, or (4) for refusing to obey an order that would pose an undue risk of death or serious personal injury to the crew. The maritime law sometimes adopts State wrongful discharge laws. A diver/crewman who is the victim of such retaliatory vengeance by the employer is entitled to file a lawsuit to recover damages for mental anguish, lost earnings, and expenses in finding another job.
If you are injured, fill out an accident report and make sure that it describes any and all factors creating an unsafe workplace, such as improper tables, planning or monitoring, co-employee negligence, insufficient or defective equipment, insufficient manpower, unsafe procedures, or anything else. A STITCH IN TIME SAVES NINE! Do what you can to make sure that an incorrect, incomplete, doctored, forged, or non-existent accident report does not exist in your case!
Often times, soon after an injury, the employer's insurance representative or claims agent will try to get a signed or taped statement from you. Insofar as the employer or insurer butters his bread, that is where his loyalty typically lies. He will probably try to get his slant of the facts. It is the old, "Is the glass half empty or half full" adage. If you want your glass on the full side: CALL ME. Talking to an insurance representative or claims agent without first getting legal advice can result in your glass being half empty. LOOSE LIPS SINK SHIPS!
Once an injury has occurred and after receiving medical attention, the question often arises: Do I need a lawyer? An injury claim is not a simple, straightforward matter. There are many factors that come into play, such as the amount of compensatory damages, the nature and extent of disability, negligence, unseaworthiness, I could go on ad nauseam.
In 1964, the Supreme Court recognized that just having a favorable law on the books is not enough and that you need experienced counsel who can get in the company's face, to wit:
" . . . It soon became apparent to the . . . workers, however, that simply having these federal statutes on the books was not enough to assure that the workers would receive the full benefit of the compensatory damages Congress intended they should have. Injured workers or their families often fall prey on the one hand to persuasive claims adjusters eager to gain a quick and cheap settlement for their . . . employers, or on the other to lawyers either not competent to try these lawsuits against the able and experienced [employer] counsel or too willing to settle a case for a quick dollar."
An attorney skilled in handling Jones Act and maritime law cases can best advise you on all these factors. We can look into your case, without charge and without alerting the employer, and advise you whether or not your claim is worthwhile to pursue. Once our initial investigation is complete, we discuss it with you and you decide whether or not you want to go forward. In some instances, we have advised an inquiring diver/crewmember to accept an outstanding offer to settle by the company, keep his job and not rock his employment boat. By checking things out, you are covering all the bases, and can hit the ground running if the need arises down the line, instead of playing catch-up later on when everything is hitting the fan economically and/or emotionally. REMEMBER, I have been certified by the Maritime Law Association of the United States to be qualified as a Proctor in Admiralty.
The areas of legal practice of the Divers' Legal Network are throughout the United States for divers injured around the world. The practice of federal law often involves travel, whichever way you slice it. When necessary, our attorneys or investigators will fly or drive in to meet with you in order to get the job done.
The lawyers of O'Bryan Baun Cohen Kuebler are all members of the State Bar of Michigan, and probably not your State. In your State, that part of our practice described herein is limited to the representation of injured crewmembers whose rights in case of injury are governed by Federal Law. We practice exclusively in the Federal Courts. We do not advertise for, counsel on, seek, or accept State Law cases outside Michigan. If we are not already admitted to practice in a particular Federal Court, we gain admission to practice in Federal Courts out-State to us on a pro hac vice (for each particular case) basis often by choosing and associating with lawyers to sponsor us who are admitted to those Courts.
An injured diver/crewmember has the right to take his case to Court. Without litigation, the company may be reluctant to pay full value. Some cases settle before trial. The choice of whether to settle or proceed to trial and verdict is your decision. If you have experienced counsel who the company knows can take them to the cleaners at trial, it stands to reason that they will offer you more money to settle than if you are represented by some local yokel ignorant of maritime law, or a lawyer who also represents companies with the potential conflict of interest that that entails. Why gamble? Call 1-800-OBRYANS.
Income of the Divers' Legal Network is generated by successful prosecution of claims. Fees are typically thirty-three percent (33%) of any personal injury recovery, not the forty or fifty percent some shysters charge. We do not make money unless you do. If we want more, we have to get more for you. Costs of litigation are unilaterally borne by the client in any case; however, we generally advance all costs.
Like a fingerprint, each case is different. The information provided herein should not be relied on as providing any legal opinions or guidance on your case. It is only meant to provide a brief overview of the constantly evolving law. With regard to your case, a specific examination of the facts would have to be made in order to opine how the law applies.
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