Maritime workers love what they do — but they also put themselves at risk every time they head to work. These essential workers face the threat of accidents and possible injuries that could occur because of their vessel's conditions or the weather while on the waters.
While no employer can control the changing elements, they can take steps to secure the safety of seamen, crew members, and maritime workers on board. There are laws that protect injured maritime workers, giving them access to the necessary compensation and benefits for their trouble.
In this article, you'll learn about the possible scenarios and on-the-job injuries that maritime workers may face, what a maritime injury is in legal terms, and how the law can protect you if you're a maritime worker in Louisiana.
What Is a Maritime Injury?
A maritime worker injury refers to an incident when an employee, a maritime worker, gets injured while navigating vessels on US water. The injured maritime worker doesn't qualify for traditional worker's compensation.
However, as any attorney will tell you, these employees still have full rights. There are different maritime laws that compensate seamen (and women) for any employment-related maritime injury.
We will discuss these laws later and how you or a loved one can file a claim based on the situation that applies to your injuries. First, let's take a look at the types of accidents and injuries common to many employees aboard container ships and other vessels.
Five Common Maritime Worker Accidents
The perils of working within the industry, on a vessel, are high even if maritime employees are careful. As the CDC reports, “Marine transportation workers face a variety of unique hazards.”
- Physical hazards like noise levels, vibration, ultraviolet light exposure, line handling, heavy lifting, slippery surfaces, steep ladders, and narrow passageways, which are exacerbated by weather conditions
- Chemical hazards such as exposure to chemical cargos, fuel, cleansers, and diesel exhaust
- Biological hazards that may come from the transmission of contagious diseases between coworkers all working in a confined space (aboard a vessel for days at a time), as well as travel-related infections
Together, these three obvious hazards, coupled with more subtle situations like fatigue, low job control, circadian rhythm disruption, and even social isolation can contribute to the reason why fatal injuries among maritime employees are six times higher than all other U.S. workers.
These situations are also what contributes to common accidents that usually take place on the job:
1) Fishing-Related Accidents
Working long hours in commercial fisheries leads to fatigue which results in imprecision during work.
This, on top of external conditions such as terrible weather and shaky movement of the vessel, is the reason why 50% of maritime worker accidents involve commercial fishing.
2) Injuries Due to Inadequate Training
The worker cannot carry out a specific task using tools and equipment while in the vessel due to a lack of proper skill or technique. It's the responsibility of an employer to ensure that they provide adequate training or hire individuals who show certification or qualifications within a particular area.
3) Worn-Out or Substandard Equipment
If the equipment used on the vessel is old and hasn't been replaced yet, it carries the risk of causing an accident that can injure people no matter how expertly the maritime worker handles it or what safety measures they try to employ. The maintenance of work equipment is the responsibility of an employer.
4) Slipping and Falling Aboard a Vessel
Because of the vessel's erratic movements while on water, there's a good chance that maritime workers may slip or fall, leading to injuries.
There's also a chance that an injured seaman may fall into the sea or get caught between vessels while loading the cargo. This is the trickiest of all injury claims because it requires putting other people at risk to save the trapped or overboard worker.
Maritime workers stationed in the vessel's engine room are prone to coming in contact with hot oil and harmful chemicals.
Maritime Injuries Caused By Accidents
The severity of injury claims within the industry depends on the accident's impact and where an injured seaman sustained that injury. Regardless of whether negligence is at play or not, the common work injuries employees face include:
Injuries to the head area are prevalent among maritime workers. Even if the injury sustained seems minor, it's best to consult your physician first to ensure that everything is okay. If you plan to pursue further compensation, as is within your rights, you'll also need proof of these visits to help you build a case.
From operating safety equipment to hauling heavy cargo, it's possible to injure one's limbs during work. Slip-and-falls while on board a vessel are also common sources of broken limbs. Depending on the situation, an injured seaman may also experience injuries serious enough to require amputation.
Overexertion and poor form when exerting force are the main causes of shoulder injuries. There's also a risk of incurring other injuries ranging from sprains, bursitis, dislocations, and others. There are training options available for individuals working within the industry that can help mitigate exertion-related injuries.
Four Crucial Types of Maritime Compensation for Injured Workers
There is a difference among maritime workers' comp. Their occupation dictates the rights they have, which affects the laws governing them.
In the case of injury and accidents, there are specific laws that dictate how maritime workers can access and apply for workers' compensation.
1) General Maritime Law
This law requires employers to provide “maintenance and cure” to an injured worker. They must offer a room and board (maintenance) and shoulder the medical bill (cure) of the workers until s/he fully reaches maximum medical improvement.
The employers must also pay for these living expenses, which include but are not limited to food, mortgage payments, and insurance.
In this case, “maximum medical improvement” doesn't mean that workers need to heal from the injury fully. It merely refers to the point at which further care no longer improves his/her condition.
Even if employers are not at fault for the workers' injury, they are still required to follow the law and provide the benefits above. It's not workers' compensation, but it's close.
2) Jones Act
The Jones Act is more serious and allows maritime workers to sue their employers for negligence during work that caused the vessel accident and the resulting injury.
The Jones Act covers seamen, known as masters or crew members of a vessel on navigable water. According to the Department of Labor, seamen's main objective is to fulfill the vessel's purpose. Their duty does not involve functions of navigation and transportation.
To collect their Jones Act compensation, the injury must have taken place on and was caused by a “vessel on navigable waters.”
This means that the vessel has the ability to float and move under its own power. The vessel must also be on the water and not out of it or on drydock. Finally, it does not have to be moving or at sea when the injury took place.
Regarding “navigable waters,” the Jones Act applies to other water bodies such as lakes and rivers used for commerce purposes.
Also, the seamen need to spend at least 30% of their time working in the vessel to be eligible for compensation.
Proving the negligence of the employers is less challenging compared to other personal injury cases. The worker only needs to prove that the employee's failure to improve the working conditions caused the injury. There is no need for the burden of proof when it comes to this type of negligence damages.
Filing for a Jones Act Lawsuit
As an attorney will tell you, there is a three-year statute of limitations for the seaman to file a claim in court. Therefore, the seaman must take time to recover from the injury s/he sustained from the accident.
Only then can s/he prepare the following documents to file the case according to the Jones Act lawsuit:
- Incident report that s/he and his/her employer filed.
- Medical treatment records the seaman received under the “maintenance and cure” benefits of the general maritime law.
- The ship's log
While doing this, the seaman needs to decline to offer a statement to the employer's insurance company.
Once the Jones Act lawsuit is in full effect, keep in mind that every situation is different, which leads to unique benefits if the jury finds for the seaman. However, there is also other possible outcomes that the seaman can be compensated for because of the injury:
- Lost wages due to the employer's negligence
- Permanent disability
- Lost earning capacity due to the incurred disability
- Physical, emotional, and mental anguish
- Inability to perform common tasks and live a fulfilling life that was once possible before the accident
After the Jones Act Lawsuit
Receiving the full compensation from the lawsuit may take a while. In this case, the seaman may consider getting a cash advance using the Jones Act lawsuit funding. The loan allows the injured seaman to receive financial relief while waiting for compensation from the lawsuit.
There are lots of reputable lenders and companies that provide this service. However, a significant issue when taking this course is the burden of compounding interest on the loan. The seaman must discuss with his/her attorney or personal injury lawyer if this is the right decision for their situation.
Longshore and Harbor Workers' Compensation Act (LWHCA)
The LWHCA covers maritime employees who aren't seamen. These include traditional maritime jobs like shipbuilding, harbor construction, oil rig workers, dock workers, etc.
The Longshore and Harbor Workers' Compensation Act has more in common with the federal workers' compensation program than the Jones Act. However, the difference is that the LWHCA allows you to receive 2/3 of your average working wage, which is more than what the federal workers' comp program offers (60%).
To qualify for the Longshore Act benefits, the workers injured on the job must pass two tests:
- Status test -Establishes the fact that the person is a maritime worker for the employer. Includes tasks such as but are not limited to building ships, loading/unloading vessels, and repairing transports that move containers to and from the ship.
- Situs test – Confirms the location of the worker performed his/her and the injury took place. If the worker was within a mile's reach from the vessel on navigable waters, s/he passes this test.
The worker's benefits from the Longshore and Harbor Workers' Compensation Act come from the Defense Base Act, a separate federal law providing workers' compensation protection to employees.
In this case, the Longshore Act offers the necessary medical treatment to the injured worker. It pays for the rehabilitation of workers no longer capable of going back to their previous work.
Filing for LHWCA Claim
Before filing your claim, it's best to discuss your case with an LHWCA lawyer to ensure that you have all your bases covered.
Normally, the longshore worker must meet the Office of Working Compensation Plan's (OWCP) to file for LHWCA benefits. From there, s/he will be handed a list of procedures s/he must follow to begin the claim process.
First, the worker must report the injury to the employer that caused him/her to miss a shift or more within 30 days after incurring the injury.
If s/he is unable to file a claim within 30 days, it's possible that the OWCP won't penalize the worker if s/he has a reasonable excuse.
In fact, there are two reasons that the worker can report the injury past the 30-day limit:
- If the worker was injured but can still perform his/her duty until s/he is unable to after some time due to the injury.
- The worker contracted diseases during work, also known as occupational diseases. While it's still recommended to file a claim within 30 days, LHWCA allows up to a year to do this. However, there is no guarantee that the judge will side with the worker due to the law's ambiguity regarding diseases.
When filing a claim, the worker must fill out a Notice of Employee Injury or Death report. This is where s/he details the injury in depth, i.e., how the injury happened, when and where it took place, etc.
The employer may try to deny the accident and injury. But once the worker files the report within the 30-day period, expect the injury report to be on the records.
Also, the worker must keep copies of the written claims for safety or claim denials.
What Happens if My Claim is Denied?
After filing the claim, all the worker must do is wait for the insurer to hand out the payment. However, if the insurer refuses for whatever reason, the worker must request a conference by filling out a Longshoreman Claim.
This informal conference is to ask for advice from a claims examiner on how to proceed. The examiner will put in writing his/her recommendation regarding the situation.
In most cases, the most common advice is to request a formal hearing before a federal Administrative Law Judge (ALJ). During the hearing, details of your claim will be discussed to help the ALJ make a decision regarding your case.
Therefore, there's a possibility that the worker's claim will be denied the second time. In that case, the Department of Labor's Benefits Review Board may review the decision and accept or reject it.
Death on High Seas Act
If the injury is the cause of a maritime worker's death, the remaining family members can file a lawsuit under this provision. It allows them to file for damages due to the irresponsibility of the employer.
The Death on the High Seas Act (DOHSA) compensation covers the following:
- Funeral and burial costs
- Counseling expenses
- Loss of existing or future financial relief
Maritime workers can breathe a sigh of relief knowing that there are rules provisions in place if they incur workplace injuries. The last thing they'll need is to be left on their own once they are disabled or incapacitated in an accident for doing their jobs.
Therefore, if you're one of the workers who suffered from a maritime injury due to the employer's negligence, knowing your rights is the best you can do for yourself.
Aside from having read this post, you must also consult with a maritime law attorney to provide you with legal counsel for the next steps. Doing so will help you recoup the damages you experienced — physical, financial, and emotional — from the injury that wasn't your fault.
If you need help regarding this matter, we at Schwartz Law Firm have attorneys experienced in maritime law. Contact us right away for a FREE consultation and our attorneys can help you with the navigation and assessment of your rights.