We practice maritime personal injury law, sometimes referred to as Admiralty Law. It is a distinct area of legal practice. Just as there are divorce lawyers, corporate lawyers, criminal lawyers and patent lawyers, there are attorneys that practice maritime personal injury law. You may know someone who was injured on a vessel and was unable to get the compensation and medical treatment owed to them. 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 a one-way ticket home after an injury, begging for the medical and compensation you are owed, are over.
Seamen 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 seamen more protection than nearly every other class of worker. The rights of onshore laborers have little bearing on seamen. To be a seaman, one must be a crewmember working aboard a vessel in navigation.
Workers with a substantial connection to a vessel in navigation whose duties contribute to the function of the vessel are crewmembers or seamen. From a captain to a slot attendant to a cocktail waitress, and all jobs in between. A worker need not be part of the navigation crew to be covered.
Vessels manned by a crew and capable of navigation are covered. A vessel can be docked yet still be "in navigation", if it is manned, equipped and ready to go.
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 or taken ill in the course of their employment. 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 provide a safe place to work. The entire work environment is taken into consideration, including the task being performed, space, tools and equipment provided, and conditions under which the job must be performed. The employer has a duty to correct and/or warn of unsafe conditions of which it does, or should, know.
The doctrine of seaworthiness is a separate and distinct theory of liability against a shipowner/employer. It 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 crewmember. It does not mean that the vessel must sink in order to recover. Unseaworthiness can arise from insufficient manpower for a task, defective equipment, or an unsafe condition. 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.
If an employee proves a case of negligence, or unseaworthiness, compensatory damages are payable; however, the employer or vessel owner can claim as a defense that employee negligence contributed to the injury. That is called comparative negligence.
In such a case, the employer claims that the employee failed to exercise reasonable care for his own safety. If proven, an award is reduced by the percentage of comparative negligence.
For example, if an employee 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.
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 in the service of the ship, until maximum medical improvement is reached regardless of fault or blame (unless the injury or illness results from willful misconduct, such as drunkenness, of the crewmember). In other words, it doesn't matter who is to blame for the injury or sickness so long as it happens while you are working. 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 Supreme Court have allowed increases for unionized seamen. When representing unionized seamen 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.
While maintenance and cure is owing, the crewmember has the right to receive his agreed income - wage, share or percentage - during the contractual period of employment, be it for a definite time, voyage or season.
If you're injured in the course of your employment as a crewmember, the Jones Act preempts the no-fault Workers' Compensation Acts of any State. Employers may try to trick an injured crewman into believing his remedy is workers' compensation weekly benefits. This is perhaps one of the greatest travesties of justice perpetrated on crewmen. While an Alaska federal district court upheld a work agreement that substituted workers' comp for the Jones Act, Alaska State courts have refused to uphold such an agreement. New York federal courts have affirmed and upheld workers' comp formal awards for seamen who realized too late that they could have pursued their claims under the Jones Act. Payments under Workers' Compensation Act are often far less than potential recoveries under the Jones Act. Do yourself and your family a favor by contacting us if you are injured on a vessel or otherwise engaged in marine work to ensure you are pursuing all of the available remedies to which you are entitled.
Jones Act, unseaworthiness and maintenance and/or cure liability can apply to heart disease, hearing loss, food or water poisoning, arthritis, tuberculosis, pneumonia, lead poisoning, dermatitis, asbestosis, 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 between New Orleans and Detroit, between Miami and Memphis, between New York and Seattle, and so on. Companies are subject to jurisdiction in any federal district in which they are doing business. We select the best court suited to prosecute your case so as 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 crewmember to money damages under the Jones Act or unseaworthiness doctrine. Before a 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 could work until an injury made it disabling, compensation can be payable for the aggravation of the underlying condition and the resulting disability. In other words, the fact 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 are more than just lost wages. Pain, suffering, mental anguish, inability to engage in social and recreational pursuits previously enjoyed, fear of future surgery, embarrassment, humiliation, scarification, and lost future earning power, are but some of the components of damages allowed under maritime law. The elements of possible recovery in a particular case generally depend on the nature of the injury and the way it has affected the crewmember. Oftentimes, after returning to work from an injury, an employer approaches the worker with an offer to pay him his lost wages while off in exchange for the worker signing a release. Workers who agree to such terms are likely shortchanging themselves and their families since they are basically forfeiting a range of damages otherwise recoverable. BE SMART and contact us before you sign away your rights!
You have the right to pick your own doctor. We are automatically suspicious when a crewmember is treated by a doctor selected by the employer since a potential conflict of interest exists in situations where your best medical interests might differ from the employer's economic interests. This typically comes into play when doctor decisions have to be made concerning your ability to return to work, work restrictions, whether an accident caused a disability, and/or permanent impairment. When in doubt, get your own doctor whose loyalty is to you alone.
Once it is established that the employer or shipowner is liable for the initial injury, that responsibility covers injuries caused by any medical malpractice which occurs in the treatment of the injury. If the employer selects the doctor for treatment, it is responsible for any subsequent malpractice, whether or not negligence or unseaworthiness caused the initial injury.
The statute of limitations for maritime torts is three 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 year limit. But, if employer liability is sought for the malpractice of an employer-selected doctor, the state statute of limitations may apply. If you think that you have a case, but it occurred more than three years ago, we would have to go over all the facts before advising you on whether your claim is time-barred.
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 crewmember's case, or (3) for reporting a statutory or regulatory violation to the Coast Guard, or (4) for refusing to obey an order that would pose an undue risk of death or serious personal injury to the crew. A 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 darkness, slipperiness, 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!
Oftentimes, 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 he represents the employer, that is where his allegiance 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 to do what you can to make sure that the scales of justice are tipped as much as possible in your favor, cover all your bases: CALL US. 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 case 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, etc.
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 protect your rights, 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 hand to lawyers either not competent to try these lawsuits against the able and experience [employer] counsel or too willing to settle a case for a quick dollar."
An attorney skilled in handling Jones Act 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 if it 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 crewmember to accept an outstanding offer to settle by the company without us getting hired or involved and without charging a fee. By checking things out, you are covering all 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, we have experienced lawyers who have been certified by the Maritime Law Association of the United States to be qualified as Proctors in Admiralty.
The areas of practice of the Gamblin Boaters' Legal Network are throughout the United States. The practice of federal law involves travel, whichever way you slice it. When necessary, our attorneys or investigators will fly or drive in to meet with you and accomplish what needs to be done. The breadth, expanse, and expertise of our national practice allow us ready access to the transportation and court systems involved.
The lawyers of O'Bryan Baun Cohen 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.* 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 which may include choosing and associating with lawyers to sponsor us who are admitted to those Courts.
An injured crewman has the right to take his case to Court. Without a lawsuit, 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 has been successful at trial, it stands to reason that they will offer you more money to settle than if you are represented by inexperienced counsel ignorant of maritime law. Why gamble? Contact us.
Income of the Gamblin Boaters' Legal Network is generated by successful prosecution of claims. Fees are typically thirty-three percent (33%) of any recovery. In other words, 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.