The Jones Act and Seamen's Injury Claims

The Jones Act is a federal law giving qualified maritime workers certain injury-related benefits and the right to sue their employer for injuries suffered on the job.

An injured crew member might also be entitled to compensation for injury or illness caused by a ship or boat's "unseaworthiness."

Here's what to know at the outset:

• Unlike almost all land-based workers, Jones Act "seamen" aren't entitled to workers' compensation benefits under either state or federal law.
• The only compensation a seaman can typically receive for on-the-job injuries is through the Jones Act, or through an "unseaworthiness" claim.
• There are key threshold issues to establish, but once the Jones Act or the "unseaworthiness" doctrine applies, it's not usually all that difficult for an injured maritime worker to get compensation for their injuries.

What Does The Jones Act Do?

The Jones Act provides critical protection to "seamen" while they perform their job duties, which can present a wide variety of hazards. (Note: "seaman" and "seamen" are the terms used under the Jones Act to identify a covered worker, regardless of the worker's gender identity.)

There are two main kinds of claims available to an injured seaman under the Jones Act.

A "maintenance and cure" claim provides compensation for a seaman's daily expenses (maintenance) and necessary medical expenses (cure) after a work-related injury. An injured seaman is almost always automatically entitled to maintenance and cure under the Jones Act, regardless of the cause of the injury, and whether anyone's negligence played a part in it. Learn more about maintenance and cure in maritime injury cases.

A negligence claim against the employer lets an injured seaman recover for a wider spectrum of accident-related losses, but some level of fault on the part of the employer needs to be shown.

We'll be taking a closer look at the "negligence" side of things throughout this article.

Who Is a "Seaman" Under the Jones Act?

In general, a "seaman" is a person—from crewmember to captain—who performs a significant amount of their work on a vessel (any kind of ship or boat).

Part-time seamen must usually spend at least 30 percent of their job time working on a vessel in order to qualify under the Jones Act. Learn more about who qualifies as a seaman under the Jones Act.

Longshore workers and employees of shipyards, harbors, and marinas usually don't qualify as "seamen" under the Jones Act, but they're typically entitled to compensation for work-related injuries under the Longshore and Harbor Workers Compensation Act. Learn more about the LHWCA and its claim process.

Because it can be difficult to sort out when and whether "seaman" status might apply to a particular worker, it may make sense to contact a qualified attorney to understand your options and formulate the right strategy after an on-the-job injury.

What Is Negligence Under the Jones Act?

The Jones Act requires a seaman's employer to:

• provide the seaman with a reasonably safe place to work, and
• use proper care to maintain the vessel on which the seaman works, and keep it in a reasonably safe condition.

A maritime employer is liable to the seaman under the Jones Act for the negligence of any of its employees, including the seaman's captain and fellow crew members. In order to make a successful negligence-based claim and recover additional compensation ("damages" in the language of the law") under the Jones Act, the injured seaman must usually prove:

• that the owner, captain, and/or a crew member of the vessel that the seaman worked on was somehow negligent, and
• that negligence was a cause of the seaman's injury.

Learn more about negligence in injury cases.

The Jones Act Is Employee-Friendly

The act places a great burden on a seaman's employer to ensure that the seaman's workplace is reasonably safe. An employer can be held liable under the Jones Act for all types of unsafe conditions on a vessel, including:

• grease or oil on the deck
• breakage of equipment
• improperly maintained equipment
• the employer's failure to provide crew members with the proper equipment for them to do their work
• improper or inadequate training of the seaman or of the crew in general
• unsafe work methods
• negligence of the seaman's co-workers, and
• assault by a co-worker.

What Are Some Examples of Jones Act Negligence?

Let's say a deckhand temporarily removes a stairway railing in order to de-rust and repaint it, but he fails to post any warning, cordon off the area, or take any other precautions. Moments later, another deckhand descends the stairway, reaches for the absent railing, loses her balance, and falls. The injured deckhand has a good chance of suing their employer for negligence under the Jones Act, since the first deckhand failed to provide a reasonably safe workplace.

Another example might be if the ship owner fails to have the vessel's equipment properly maintained. The duty to maintain extends to every part of the vessel and every single piece of equipment on it. Let's say a hatch cover gets rusty and becomes very difficult to open. If a crew member injures their back trying to lift the hatch cover, the employer will be liable for failing to have properly inspected and repaired the hatch cover.

A Jones Act employer can even be liable for hiring and/or failing to fire a violent crew member. If a crew member has developed a reputation for being violent—even threatening their co-workers—the employer has a legal duty to get that person off the vessel.

Lower "Burden Of Proof" Under the Jones Act

In standard negligence cases, the plaintiff (the injured person) must prove that the wrongdoer's (the defendant's) negligence played a substantial part in causing the injury. Usually, this means that the defendant's negligence had to have been the main cause of the plaintiff's injury.

However, under the Jones Act, a plaintiff's bar is lower when it comes to proving a link between the negligence and the resulting injury. This is a key aspect of the Jones Act.

In order to prove causation under the Jones Act, the plaintiff only needs to prove that the employer's negligence played any part—however small—in the plaintiff's injuries. There could have been three other more significant causes of the injury, but the plaintiff would still be entitled to recover damages against a Jones Act employer as long as the employer's negligence was even a minor cause of the injury.

What Injury-Related Losses Are Covered Under The Jones Act?

An injured seaman is usually entitled to recover compensation for:

• lost wages (past and future)
• lost employment-related benefits
• past and future medical expenses, and
• mental and physical pain and suffering related to the injuries.

Some courts also allow the seaman to be awarded interest on their damages.

Let's take a closer look at some of these categories of compensation in a Jones Act case.

Lost Income and Lost Earning Capacity In Jones Act Claims

Lost earnings and lost earning capacity refer to the job income that the injured seaman has lost, is losing, and will lose as a result of the injury. This category of damages also includes any employment benefits that the injured seaman may have lost or is reasonably likely to lose in the future as a result of the injury, such as health insurance, vacation time, pension or 401(k) contributions.

If the seaman has strong enough evidence, they may also be able to claim damages for future promotions that they're likely to lose because of the injury.

Calculating Past Lost Earnings. To calculate past lost earnings, the seaman simply needs to add up the earnings and employment benefits that they lost from being out of work. If, for example, you earned $120,000 per year, plus $30,000 of fringe benefits, and were out of work for one year, you lost $150,000.

Calculating Future Lost Earnings and Lost Earnings Capacity. Proof here often requires the plaintiff's lawyer to hire a professional economist. But let's say you suffered an injury that prevented you from returning to your old job. You used to earn $150,000 per year including benefits, but after your injury you're only able to earn $80,000 per year including benefits. Your lost earning capacity is $70,000 per year for the remainder of your "work life expectancy," a statistical measure of how many more years a person is reasonably expected to work, based on several key factors

Figuring Out Present Value. Because lost earning capacity involves a calculation of losses that may extend for many years into the future, it has to be calculated in terms of its present value, a financial concept that involves determining the value of a future stream of income (i.e., your weekly paycheck) as if it were all in a bank account today. In other words, how much money does your employer need in a bank account today in order to pay you your salary for, say, the next twenty years? This is a very complex financial calculation that's left to economists and other financial experts.

Medical Expenses In a Jones Act Claim

Medical expenses include not just the bills the seaman incurred for past medical and health care treatment related to their on-the-job injury, but also bills that will likely come for future medical treatment.

An injured seaman is entitled to recover for just about every type of reasonably accepted health care treatment, as well as reasonable transportation expenses to get to the treatment. This includes physical therapy, occupational therapy, vocational therapy, massage therapy, full time nursing care, mental health treatment and counseling, and acupuncture, among other types of treatment.

It's important to note that if the seaman has already collected "maintenance and cure" benefits after their injury, they won't be entitled to double recovery in a negligence claim against their employer. So, for example, the cost of medical treatment paid for early on as part of the seaman's "maintenance and cure" can't be included as part of the seaman's damages in a later negligence claim.

Pain and Suffering In a Jones Act Claim

Pain and suffering can be broken down into physical and mental pain and suffering. Physical pain and suffering is the pain of the injured seaman's actual physical injuries, as well as the pain and suffering from scarring, disfigurement, and permanency of the injuries.

Mental pain and suffering includes things like mental anguish, emotional distress, loss of enjoyment of life, fear, anger, humiliation, anxiety, and shock. Significant mental pain and suffering can also cause severe anger, appetite loss, lack of energy, sexual dysfunction, loss of interest in sex, mood swings, and/or sleep disturbances. Very severe mental pain and suffering can even constitute post-traumatic stress disorder (PTSD).

Injured seamen are entitled to recover damages for all pain, suffering, and mental anguish suffered as a result of their on-the-job injuries.

How to File a Jones Act Claim

Here's a summary of the major steps that take place in almost every Jones Act case.

Reporting the Injury

If you get hurt while at work, either out at sea or on land, you should report the injury to the captain, shipmaster, or some other supervisor as soon as possible.

Insurers, and particularly Jones Act insurers, don't like cases where the accident doesn't get reported immediately. They assume that, if you didn't report the accident immediately, you weren't really hurt. Don't wait.

If you are a merchant mariner, your company will generally require you to fill out an accident report. You should fill out the report as best you can if you are able to do so.

Company accident report forms almost always have a section covering fault for the accident. If you don't indicate that the company was at fault, that may hurt your case later if you end up in court. If you don't feel comfortable accusing the company of fault, you can state that you're not immediately sure who was at fault.

Your Employer (or an Insurer) Will Ask for Your Statement

Whether you're a merchant mariner or a commercial fisherman, the insurer will almost always try to get you to give a written or recorded statement. Do what you can to get off of your ship and away from the dock or hospital without giving the insurer a statement. Your response can be something as simple as: "I'm not ready to give a statement right now, maybe later."

Get Medical Treatment

If you're injured, you need to get medical treatment. Regardless of where you get hurt, a maritime employer must ensure that injured employees get proper care. They have the obligation to consult with a physician by phone or radio if your condition is really serious. If you are in a foreign country, your ship must get you proper medical treatment and get you home.

As soon as you can, try to take control of your own treatment. That means:

• see your own doctor
• follow all of the doctor's orders, and
• don't miss any appointments.

Your medical records will play a big part in your claim, so it's important to get prompt and thorough treatment.

Do You Need to Hire a Lawyer for a Jones Act Claim?

As a general rule, you can handle a Jones Act claim on your own, if you're comfortable with the process and willing to stick with it until you get a fair result. But it's usually a good idea to at least discuss your situation with a lawyer if:

• the insurer isn't paying your maintenance and cure
• you're having trouble getting medical treatment
• your employer or the insurance company is bullying you into making a statement
• it looks like the potential settlement value of your injury case might be more than around $20,000, or
• you're just not certain you can handle the matter yourself and come away with the best result.

We'll talk more later about getting a lawyer's help after a maritime work injury.

Settle a Jones Act Claim or File Suit?

As with any injury-related case, you never want to settle a Jones Act claim until you've finished your medical treatment and reached a point of maximum medical improvement. You won't know how much you should settle for until you know how well you will recover from your injury.

In fact, you might want to wait to settle until you've actually returned to work. Maritime work can be pretty physically demanding, and you might not know if you've returned to pre-injury form until you give it a shot.

Get more information on settling your claim (links take you to articles on general personal injury cases, but much of the information translates to any kind of injury claim):

• How settlement negotiation works in an injury case
• Tips for negotiating an injury settlement with an insurance company
• What happens when injury settlement talks fail

If you can't settle the case, then you may need to to file a lawsuit, but remember that settlement talks can still be ongoing.

Where Can a Seaman File a Jones Act Lawsuit?

A seaman can file a Jones Act lawsuit in either state or federal court.

How Long Does a Seaman Have to File a Jones Act Claim?

A lawsuit under the Jones Act must be filed within three years of the date of the injury.

If you're still handling your Jones Act claim on your own and you're thinking about filing a lawsuit, it's probably time to discuss your case (and your prospects) with an experienced legal professional.

What Is an "Unseaworthiness" Claim

Under the unique "maritime law" that applies to most ships and boats, a "seaworthy" vessel is one whose hull, equipment and crew are reasonably adequate in design, maintenance and character to perform their intended functions. In plain English, on a seaworthy vessel, everything is "shipshape" in the eyes of maritime law.

"Unseaworthiness" does not necessarily mean that the vessel cannot sail or be navigated. A vessel is usually called "unseaworthy" with respect to crewmembers' health and safety if it:

• does not provide the crew with safe and suitable equipment with which to perform their work, and/or
• does not provide the crew with a safe environment in which to work.

How Do You Prove "Unseaworthiness"?

An injured seaman does not have to prove that the entire vessel was unseaworthy, or that it was in danger of sinking. All the injured seaman needs to prove is that:

• some condition or aspect of the vessel, equipment or crew was not reasonably fit for its intended purpose, and
• the seaman was injured as a result.

Let's look at a couple of examples.

If the engine breaks down and the vessel is sitting dead in the water until repairs can be made, it may be unseaworthy as far as the captain is concerned, but that does not automatically make the vessel unseaworthy for maritime law purposes.

Let's say, however, that the vessel's winch is in disrepair and failing, but the vessel owner refuses to fix it. If the winch operator uses the winch to pick up something well within the winch's capacity, but the faulty winch fails and the object drops onto a crew member, that would constitute an unseaworthy condition. The vessel's equipment is no longer reasonably adequate to perform its intended function.

Who Can Be Sued for "Unseaworthiness"?

It's not the employer's duty to provide a seaman with a seaworthy vessel; it's the vessel owner or operator's obligation. Often, this is the same person or company, but sometimes they are two separate entities.

Next Steps for Injured Maritime Workers

Laws and legal doctrines like the Jones Act and "unseaworthiness" are meant to protect maritime workers when they're injured while performing what can be fairly risky jobs.

If you're a crewmember who has been injured onboard a vessel, your best first step is to make sure you report the incident to your captain or shipmaster. After that, your first concern is making sure you get proper medical care for your injuries.

You might be able to handle a Jones Act or "unseaworthiness" claim yourself, if you're comfortable with the process and you're confident you can stick with it until you get a fair result. But if you run into any roadblocks, or if you're just not in a position to handle things on you own, it might make sense to discuss your situation (and your options) with an experienced legal professional.

Learn more about getting help from an injury lawyer.