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Maritime lawyer, Steve Gordon

Maritime injuries and accidents can occur in a myriad of situations. Depending upon the location of injury and the nature of the situation, e.g., whether it was a commercial accident or a non-commercial situation, governs whether you need a maritime lawyer or just a regular personal injury lawyer.  Clearly, injuries on a jet ski, or a party pontoon boat can be very injurious, but they do not require a maritime lawyer. A maritime injury lawyer is a specialized lawyer versed in the legal principals of General Maritime Law and the Jones Act.

General Maritime Law is a body of law developed by the federal courts through jurisprudence. The federal courts have an Admiralty “side” bestowed upon them from the United States Constitution. This Admiralty side is a court of equity as well as court of law.
The Jones Act was enacted by Congress in and around 1916. It actually is a culmination of a series of three laws passes between 1916 and 1920. The Jones act was named after its principle proponent, Senator Wesley Jones (1863-1932) from the state of Washington, urged passage of a law that would support the growing merchant marine industry of the United States. In light of this, The Jones Act became law at 46 U.S.C. §688 et seq. (re-codified in 2006 at 46 U.S.C. §30104 et seq.). The Jones Act covers maritime employees that sustain an injury while in the course and scope of employment.

Is the Jones Act the Same as Workers’ Compensation?

No. It is quite different. Workers’ Compensation is available to an employee who “suffers an injury while in the course and scope of employment”. Notice in the previous sentence there is absolutely no discussion of “fault”. That is because workers’ compensation is not based upon fault. The employee could be one hundred (100%) percent at fault for causing his injuries and still collect all of his compensation benefits. In exchange for receiving those workers’ compensation benefits, the employee gives up the common law right to sue his employer and accepts the workers compensation as the sole remedy when he starts his employment relationship.

On the other hand, to qualify under the Jones Act, one has to meet the following elements:

1)    You have to sustain an in injury
2)    While working permanently assigned;
3)    To a vessel;
4)    That is on a navigable waterway; and
5)    The injury has to be caused by the:
a.    Negligence of a fellow crewmember; and/or
b.    An “unseaworthy” condition

As you can see, there is a fault element to the Jones Act claim. When the judge or jury assesses the fault, they look at all the parties’ fault including the plaintiff. For example, if a jury finds the injured employee 100% fault but yet awards one hundred dollars, the injured employee would receive zero dollars. The Jones Act claim is a “pure comparative” type claim. That is, in most states, if the injured party makes a claim and the jury finds the injured part 50.01% negligent in causing his own injuries, he receives nothing because his percentage share of his negligence is greater than fifty percent. This is a called a modified contributory negligence bar. However, there is no such “bar” in a Jones Act claim. For example, using the example of a jury award of $100.00: (a) if the plaintiff is found 30% negligent, then he would receive $70.00; (b) if the plaintiff was held to be 70% negligent, then he would receive $30.00.

What are the Economic Differences between the Jones Act and Workers’ Compensation?

The differences can be huge. Comp is governed by a statutory scheme in the state that you work in. It is generally governed by a “Table of Injuries”, e.g., a lost foot is worth a certain amount of weeks disability; an injured back so many weeks and so on and so on.  Under comp, you give up your common law right to sue your employer when you take the job.

On the other hand, a Jones Act claim can be asserted for medical bills, lost wages, loss of earning capacity, physical suffering, mental anguish, physical disfigurement, physical impairment and other damages. It is not unusual to have a spine injury that is worth six or seven figures depending upon the earnings of the injured seaman at the time of his injury.

Is Maintenance & Cure the Same as a Jones Act Claim?

“Maintenance” is a daily payment due and payable to an injured seaman while he has not reached “maximum medical improvement”. It is similar to workers compensation in that it is regardless of fault. In other words, you can be hurt as a seaman and you may have totally caused your injuries but you are still entitled to “maintenance”. The amount of “maintenance” is governed by how much it costs to “house” and feed the injured seaman on board the vessel before the injury occurred. It has been as low as $8.00 a day and as high as $60.00 a day. Practically, $30.00 a day or $600.00 a month is usually paid.

“Cure” means medical care. When a seaman sustains an injury, he is entitled to reasonable and necessary medical care. Like “maintenance”, it too is owed by the maritime employer regardless of fault.

Both “maintenance” and “cure” are, in the law, considered “quasi-contractual” debts in nature. That is, unlike the Jones Act which sounds in tort and is only paid when fault has been established, maintenance and cure is paid because it arises out of the employment relationship between the seaman and the maritime employer.

Finally, in June, 2009, the United States Supreme Court decided the Atlantic Sounding Co., Inc. et al. v. Edgar L. Townsend case which held that punitive damages are, in fact, recoverable when the Jones Act employer unreasonably withholds payment of maintenance and/or medical cure.

What Type of Seaman is Covered & What is a Vessel?

Captains, engineers, able-bodied seaman [A/B], wipers, deckhands, roustabouts and many other types of seaman are covered. The beauty about the Jones Act is that it is the same law whether you are hurt fishing off Alaska; working on a tow boat on the Mississippi or you work in the “oil patch” of the Gulf of Mexico.

With the constant innovations of extracting oil from the sea-bed floor, what is a vessel is still being litigated. The general belief is that rule enunciated in Stuart v. Dutra that if it is capable of transporting property of persons upon water, then it is considered a vessel.

Why Do You Need a Maritime Lawyer?

Making a Jones Act claim is quite different from a workers’ compensation claim. The Jones Act employer is usually insured by maritime insurers that have been insuring in the maritime industry for at least a hundred years. When an injury occurs, they have investigators that immediately go out to take statements to build a case against you. Their goal is to show that the injury is the fault of the injured employee and the injured employee is not that hurt.

An injured seaman needs an experienced  maritime lawyer to get him to a doctor so that all of his injuries can be documented properly; to get his maintenance and cure started and to build his negligence and/or “unseaworthiness” claim. This would be impossible for a seaman to effectively and successfully try to “go it alone”. Most Jones Act lawyers work on a contingency fee. That is, the seaman pays nothing to the lawyer unless he recovers money. Fee percentages range from 33 1/3% to 45%.

Finally, making a claim takes time and you will need money to pay your bills while the maritime litigation is pending. Maintenance is usually insufficient to pay the bills. Some Jones Act attorneys, depending upon the state they practice in, are ethically permitted to advance funds to their client so they do not have to go back early to work and when they are not medically ready to go back to work.

On Thursday, June 25^th, the United States Supreme Court decided a case styled Atlantic Sounding Co., Inc. et al. v Edgar L. Townsend 2009 WL 1789469 (U.S. June 25, 2009).  This case marked the Supreme Court’s decision to protect a seaman’s right to receive damages for an employers’ willful and wanton disregard of a maintenance and cure obligation.

Petitioners allegedly refused to pay maintenance and cure to respondent Townsend for injuries he suffered while working on its tugboat. Townsend filed suit under the Jones Act and general maritime law, alleging arbitrary and willful failure to provide maintenance and cure. He filed similar counterclaims in the declaratory judgment action, seeking punitive damages for the maintenance and cure claim.

The District Court denied petitioners’ motion to dismiss the punitive damages claim, but certified the question for interlocutory appeal. Following its precedent, the Eleventh Circuit held that punitive damages may be awarded for the willful withholding of maintenance and cure.

At issue in the Townsend case was whether an injured seaman may recover punitive damages for his employer’s willful failure to pay maintenance and cure.

Central to resolving this case were three settled legal principles. First, punitive damages have long been available at common law. Second, the common-law tradition of punitive damages extends to maritime claims. And third, there is no evidence that claims for maintenance and cure were excluded from this general admiralty rule.

The general rule that punitive damages are available at common law extends to claims arising under federal maritime law. The Supreme Court relied upon a previously decided case, i.e., Lake Shore & Michigan Southern R. Co. v Prentice, (147 U.S. 101) in making the above statement. The Prentice court held that courts of admiralty are to proceed upon the same principles as courts of common law, in allowing exemplary damages.

The only statute that could have served as a basis for overturning the common-law rule was the Jones Act. However, the plain language of the Jones Act does not provide a basis for overturning the common-law rule. The Townsend court’s previous decisions have repeatedly observed that the Jones Act preserves common-law causes of action such as maintenance and cure, and supports the view that punitive damages awards remain available in maintenance and cure actions after the Act’s passage.

Punitive damages have long been a remedy available at common law for wanton, willful, or outrageous conduct. The common-law punitive damages tradition extends to claims arising under federal maritime law.

The petitioner, Atlantic Sounding Co., cited Miles v Apex Marine Corp. (498 U.S. 19) in their argument. The Townsend court held that Miles did not limit recovery to the remedies available under the Jones Act. The Townsend court further held that Miles did not address either maintenance and cure actions in general or the availability of punitive damages for such actions. The case grappled with the question of whether general maritime law should provide a cause of action for wrongful death based on unseaworthiness. This case was not dealing with the availability of remedies for wrongful-death actions brought under general maritime law. Thus, the reasoning in Miles did not apply here.

The Townsend court held that the quest for uniformity in admiralty law does not require narrowing available damages to the lowest common denominator approved by Congress for distinct causes of action.

The Townsend dissent failed to acknowledge that the general common-law rule made punitive damages available in maritime actions. The dissent never explained why maintenance and cure actions should be excepted from this general rule. The fact that they want to limit recovery for maintenance and cure to whatever is permitted by the Jones Act would give greater pre-emptive effect to the Act than is required by its text, Miles, or any other court decisions.

The majority opinion in Townsend noted that punitive damages have long been an accepted remedy under general maritime law. Further, nothing in the Jones Act altered this understanding. Thus, damages for the willful and wanton disregard of the maintenance and cure obligation should remain available in this case as a matter of general maritime law. The Townsend court affirms the judgment of the 11^th Circuit Court of Appeals.

The Townsend opinion leaves the reader satisfied, knowing the Supreme Court continues to look out for seamen and their rights under general maritime law.

Gordon & Elias, L.L.P., represents clients in all aspects of personal injury and wrongful death. They are a boutique law firm with a nationwide practice focusing on Jones Act-Admiralty-Maritime Law , FELA and Trucking Accident Litigation . Gordon & Elias, L.L.P., was formed in 2000. Attorneys Steve Gordon and R. Todd Elias bring over 39 years of combined experience to the representation of their clients. The firm has the experience and resources to pursue recovery from large corporate defendants and/or their insurers.

Reported by The AP Associated Press

UNDERHILL, Vt. – The unassuming ship captain who escaped the clutches of Somali pirates said upon his triumphant arrival home Friday that he was just an ordinary seaman doing his job, not a hero, and he praised the Navy for its daring rescue mission.

“They’re the superheroes,” Richard Phillips said. “They’re the titans. They’re impossible men doing an impossible job, and they did the impossible with me. … They’re at the point of the sword every day, doing an impossible job every day.”

Phillips was saved on Easter Sunday, when Navy snipers killed three pirates with three simultaneous nighttime gunshots.

“I’m not a hero, the military is,” he said, appearing healthy and invigorated at a brief airport news conference shortly after his arrival.

Phillips’ wife, Andrea, and their adult children, Daniel and Mariah, went on board the corporate jet to greet him at the Burlington airport. Phillips, wearing a cap from the USS Bainbridge destroyer, which rescued him, waved to a small, cheering crowd and hugged his daughter as he walked inside a building for a private reunion.

He later emerged to praise his fellow crew members of the Maersk Alabama cargo ship.

“We did it,” he said. “We did what we were trained to do.”

When Phillips was rescued, his arms were bound. On Friday, abrasions and scabs could be seen on the insides of his forearms. Asked what the high-seas hostage experience was like, he said: “Indescribable, indescribable.”

The captain, who spoke for just a couple of minutes, was to be feted later at his home in nearby Underhill with his favorite beer and a homemade meal.

Police escort
After his airport appearance, Phillips, 53, was driven home in a dark sport utility vehicle, a Vermont State Police cruiser leading the way into the small rural community where he lives, past freshly tilled farm fields, a pen with spring lambs in it and clusters of neighbors who came out of their houses to wave as he passed.

He doffed the baseball cap and waved it out the window as he passed Chamberlin’s Garden & Farm Market, where four cars sat idling, their drivers honking their horns.

Arriving at his small white farmhouse, he found it festooned with ribbons, “Welcome Home” balloons and signs, with a flag-waving contingent of about 25 people standing on the other side of the road, cheering.

“To be able to come home, safe and sound, from such a harrowing experience … oh, how Andrea’s heart must be filled with joy right now,” said Kathy Wright, of neighboring Jericho, a friend who waved red, white and blue pompoms when Phillips’ vehicle pulled into the driveway.

There was no immediate plan for a parade or public celebration, owing to the family’s status as somewhat reluctant celebrities.

“We’re respecting the family’s wishes and waiting to see what they’d like to do,” said Kari Papelbon, the town’s zoning administrator.

Yellow ribbons of hope
But all around town, the yellow ribbons that came to symbolize Underhill’s hope during the five days of Phillips’ captivity fluttered in a spring breeze, with lots of late additions as his arrival drew near.

There was a “Welcome Home Captain” sign in front of the Stitch In Time yarn shop, a “Welcome Home Captain Phillips” sign in front of Browns River Middle School and a “Welcome Home Captain Phillips” tar paper sign affixed to a red barn across the street from the family’s home.

Just as telling were a pair of posterboard signs on the fence in front of Phillips’ home.

“Thank You for Your Prayers,” said one.

“Please Give Us Some Time as a Family,” said another, a polite message to members of the media and anyone else hoping to get close.

Police also had kept people away from the airport. Still, two women inspired by the bravery of Phillips, who gave himself to the pirates as a hostage to save his Maersk Alabama crew, sat in the airport’s parking lot with a sign to welcome him home: “You’re a good man, Captain Phillips,” it read.

‘He’s a good man’
“We’re so, so proud of him,” said Lynn Coeby, of Ripton, alongside her mother, Eleanor Coeby. “We think that he has such character and morals and ethics to potentially put his life at risk for his crew, and we wanted to be here to say we think he’s a good man.”