Crew Memebers - Ship Employees
Maintenance & Cure
"Maintenance and cure" are an ancient duty of the shipowner to provide aid to seamen (any ship employee) that become ill or injured while in the service of the ship, either onboard or ashore. This implicit relationship between the seamen and their employer are without regard to negligence and unseaworthiness. The only exception to this duty is the willful misconduct of the seamen. Maintenance and cure has arisen in law and practice to encourage marine commerce, while at the same time protecting seamen form the unique hazards of their work and the unscrupulous actions of shipowners.
"Maintenance" is a per diem payment intended as a living allowance. The purpose is to provide subsistence and lodging for the seaman. It is not a compensation for injury or damages. This amount should relate to food and lodging expenses of the local that the injured seamen is residing.
"Cure" is the payment for medical expenses.Both maintenance and cure are to be paid by the ship owner until such point as the injured seamen reaches "maximum cure."
Jones Act
The Jones Act permits a seamen injured in the course of his employment by the negligence of the shipowner, master, or fellow crew members to recover damages for his injuries. Prior to the Jones act proximate cause of any injury was relevant. Congress abolished contributory negligence as a defense under the Jones act. As this act is very pro labor rights, Longshoremen where also held to be "seamen" and covered under the Jones Act as well. Moreover, the Jones Act has made it a duty on the part of shipowner to exercise reasonable care.
The Jones Act applies to inland river workers as well as offshore workers who work on a jackup rig, semi-submersible ship or rig, barge, drill ship, tug / towboat, crew boat , drill ship, dredge, floating crane, tanker, cargo ship, fishing vessel, chemical ship, research vessel, construction barge, lay barge, motorized platform, diving vessel, cruise ship, recreational boat or other floating / movable structures. The Jones Act governs the liability of vessel operators and marine employers for the work-related injury or death of an employee.
Although the Jones Act is similar to workers' compensation, it is different in many regards and is not well understood by vessel owners and insurance companies. It does not require payment regardless of fault. In order for a worker to recover under the Jones Act, the worker must prove some negligence or fault on the part of the vessel's owners, operators, officers, and/or fellow employees or by reason of any defect in the vessel, its gear, tackle, or equipment. The Jones Act provides an injured seaman a remedy against his or her employers for injuries arising from negligent acts of the employer or co-workers during the course of employment on a ship or vessel. This means that the employer must do something negligent or fail to perform a reasonable act that would have prevented injury in order for the seaman to win his claim. An injured worker's maritime claim under the Jones Act can also raise claims against a vessel's owner that a dangerous condition existed on the vessel that made the vessel unseaworthy.
There are time deadlines that apply which prevent bringing a claim if they are not met. Depending upon where the accident happened and what law applies, the deadline can be one to three years from the date of the accident to file a lawsuit.
Jones Act: 46 U.S.C. Sec. 688
Death On The High Seas Act
When a seaman dies as a result of an employer's negligence or because of an unseaworthy vessel, the worker's family may file for benefits under the Death on the High Seas Act (DOHSA). The incident must occur on the high seas beyond a marine league (three miles) from the shore of any state. The decedent's wife, husband, parent, child may file a claim under the stipulations of DOHSA.
A plaintiff usually receives damages for pecuniary loss caused by the loss of the deceased seaman's services. A DOHSA suit must commence within three years from the date of the seaman's death. If the decedent's negligent conduct contributed to the accident the award will be reduced accordingly.
The Death on the High Seas Act, has been applied to victims of airline disasters. Under DOSHA the deceased representitives may only recovery economic losses. DOHSA applies to accidents "on the high seas." Under current law, DOHSA applies to the Egyptair Flight 990 disaster, which occurred in international waters, and has been raised as a defense in other crashes despite the fact that those disasters occurred on territorial waters and not on the high seas.
TWA flight 800 crashed just beyond a marine league of New York on take off, killing all aboard. Among the decedents were many children whose parents could assert little actual pecuniary loss resulting from their unfortunate deaths. In response to the public outcry and media attention focused on airline safety, Congress soon undertook the task of amending DOHSA to allow recovery for loss of consortium, care and companionship in all cases of "commercial aviation accidents." This measure passed the U.S. Congress and became law in April, 2000. On April 5, 2000, a new amendment to DOHSA became law. The amendment applies retroactively to commercial aviation accidents which occur after July 16, 1996 (the day before the TWA 800 disaster).
The DOHSA amendment confirms the ruling of the Second Circuit Court of Appeals in the TWA 800 case that DOHSA does not govern accidents that occur within 12 miles of the United States shoreline. As a result, state law remedies, including punitive damages and conscious pain and suffering, may be recoverable against the airlines and others and not restricted by the Death on the High Seas Act. The amendment further provides that for airline, helicopter and other aviation accidents beyond 12 miles, DOSHA applies but additional non-pecuniary damages are recoverable, which are defined as "care, comfort and companionship." The amendment does not address whether DOHSA applies on foreign territorial waters.
Those crashes outside 12 nautical miles from the shores of the United States will still fall under the Death on the High Seas Act. Under the amendment however, compensation for non-pecuniary damages will be allowed in addition to pecuniary damages for commercial crashes. Non-pecuniary damages will be permitted only for the loss of care, comfort and companionship in death actions arising from commercial aviation accidents. Commercial aviation involves transport "for compensation or hire." Thus where persons are killed in "commercial" accidents on the high seas (typically the airline, commuter and charter passengers) the culpable defendants may be forced to pay non-pecuniary damages on top of pecuniary damages.
General aviation accidents on the high seas involving corporate aircraft and privately owned aircraft are excluded. Helicopter flights over water that do not involve compensation or hire, will not be covered by the amended DOHSA. Similarly, public-use aircraft accidents and military aircraft accidents are still subject to the limitations of the 80-year-old Death on the High Seas Act, whereby only pecuniary damages can be recovered.
Death on the High Seas Act (DOHSA): 46 U.S.C. Sec. 761-68
