|The Law Office of|
|MARK C. MANNING, P.C.|
SEAMEN’S REMEDIES FOR PERSONAL INJURY
Admiralty law affords a set of narrow no-fault and broader fault-based remedies to a seaman injured, or who experiences a medical problem, while employed. The following memorandum briefly reviews these remedies in general terms. The memorandum is for informational purposes only, will not necessarily apply to the facts of a particular case, and should not be relied upon as legal advice for a particular case. When needed, legal advice should be obtained from a qualified attorney.
Seaman status. An employee must, of course, have the status of “seaman” as defined by admiralty law at the time of his injury, to be entitled to seamen’s remedies. An employee who works at least a substantial portion of the time aboard ship, contributing in some way to the business of a vessel to which he is assigned, will likely have seaman status. Tidewater fishing vessel crew members are seamen, as are typical crew members of tugs, processors, freighters, six-pack charters, and other commercial vessels operating on tidewaters, or on waters that can be transited to tidewater or to another state or country. Persons injured in non-commercial boating accidents commonly will not have seaman status.
Course and scope of employment. Entitlement to seamen’s remedies may require that the injury or medical condition occur during the course and scope of employment. Course and scope can be surprisingly broad.
1. No-fault benefits. A seaman may receive limited benefits from the owner of his vessel when injured, or when a medical condition arises or becomes apparent, during his employment. These benefits are roughly analogous to workers’ compensation for shore side workers, but afforded under a completely different scheme. In Alaska, injured seamen are often not provided the seamen’s benefits to which they are entitled, but are mishandled under the Alaska Workers’ Compensation Program instead. This will result in substantial under-compensation in some cases. A seaman may receive these benefits even if an injury was entirely his own fault, or if an injury or medical condition arises from a pre-existing condition. Vessel owners have the duty to take the initiative in investigating potential claims, and to provide the benefits when investigation reveals they are warranted. The benefits include the following:
a. Maintenance. A seaman is entitled to be paid his reasonable daily costs of room and board ashore while recovering. This right usually ends when there is no longer a reasonable likelihood that he will recover further. If permanent total or partial disability remains, then the right may continue past medical recovery, until a qualified health care provider declares that the disability is “fixed and permanent,” or words to that effect. This is an important point that is commonly overlooked, and can result in years of liability after the medical recovery is as complete as it ever will be.
Daily living expenses tend to run between $25 and $35, but will depend on the particular seaman’s specific circumstances. They may include, but are not necessarily limited to, rent, utilities, food, and necessary cab or bus fare to the market. Documentation of these expenses should be retained.
b. Medical treatment. An injured seaman is usually entitled to have all reasonable medical and related therapeutic treatment paid for, as well as related transportation.
c. Unearned wages. A seaman who cannot complete his employment because of an injury or medical problem for which seamen’s remedies are owed is usually entitled to receive the wages he would have earned through the remainder of his term of employment. His term of employment may be established by a written or verbal contract. In the absence of a contract, the term may be the season during which the injury or medical condition occurred for a fisherman, or the end of the pay period for a seaman earning wages.
2. Fault-based remedies. If some fault of the seaman’s employer, the employer’s agent or a fellow employee, or of his vessel, caused or contributed to his injury or medical condition, then the seaman may have a claim for much broader compensation against his employer, the vessel owner, and/or his vessel.
a. Types of fault.
i. Negligence. Negligence, one potential basis for a fault-based claim, is a failure to exercise reasonable care under the circumstances to avoid injury to others. To protect injured seamen, admiralty law is liberal in defining negligence. Examples include, but are not limited to, failure to properly handle a vessel, failure to provide a reasonable means of boarding or departing from it, operation of a vessel under unsafe conditions, and inadequate training of an inexperienced man.
ii. Unseaworthiness. Unseaworthiness is fault with the vessel. It is not only some defect that puts the vessel at risk of sinking. It is any defect or feature that renders the vessel, or its machinery, equipment, gear or crew, not reasonably fit for its intended service. If some aspect of unseaworthiness harms a seaman, the vessel’s owner may be liable to pay the remedies even though the owner did not cause or even know about the unseaworthiness. Examples of unseaworthiness have included defective vessel controls, inadequate or absent means of boarding the vessel where needed, and an incompetent operator.
iii. Intentional wrongdoing. Although relatively uncommon, injury may be caused by intentional acts, such as discrimination, assault, defamation, and fraud.
iv. Failure to pay maintenance, cure and unearned wages. If a vessel owner fails to pay the no-fault benefits, and if the seaman experiences medical complications, pain and suffering, or other adverse consequences as a result, then additional compensation may be due.
b. Potential fault-based compensation categories.
(a). Wages to time of trial or settlement. A seaman may be entitled to recover an amount equal to the wages he would have earned, net of taxes, during any period of convalescence he was not able to work, and during any other period his injury kept him from working. Of course, a portion of such lost wages may be awarded as “unearned wages.”
(b). Reduced earning capacity subsequent to trial or settlement. If a permanent problem will reduce his employment prospects or productivity, a seaman may be entitled to recover compensation for the predicted future economic consequences to him.
ii. Pain and suffering. Compensation may be recovered for pain and suffering caused by the injury or medical condition, and for the medical treatment, and for any discomfort that persists thereafter.
iii. Lost enjoyment of life. Compensation may be awarded if the injury or medical condition precludes the seaman from recreational and other non-economic activities, in whole or in part.
iv. Future medical or other support expenses. Expenses for medical treatment and other support services the seaman will probably need in future may be recovered.
v. Other losses. Most expenses incurred by the seaman, or that he will probably incur in the future, as a result of the injury or medical condition may be recovered.
3. The Alaska Fishermen's Fund. Limited benefits for medical care to holders of Alaska commercial fishing licenses can be obtained from the Alaska Fishermen's Fund. Information about the Fund can be found at www.labor.state.ak.us/wc/ffund.htm. The Alaska statutes creating the Fund are A.S. 23.35.010 - .150. Regulations governing administration of claims begin at 8 AAC 55.010.
The foregoing summary does not include the many additional rules, policies and exceptions that may apply in a particular case. Therefore, a qualified lawyer should be consulted before making any decision in a particular case.