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THE JONES ACT
The Jones Act,
46 U.S.C. App. §
688, allows
seamen injured
in the service
of their ship to
recover damages
against their
employers.
Unlike workers’
compensation
cases, in which
liability issues
generally do not
arise, and in
which damages
are often capped
by
pre-determined
schedules,
liability and
damages are
decided by a
judge or jury,
with no pre-set
limit on
damages. Because
so much is at
stake during the
trial of these
Jones Act cases,
employers are
presented with
difficult
choices starting
with the first
notice of
injury.
Accident reports
completed by the
injured employee
usually provide
an early
opportunity for
the employer to
commit an
injured employee
to one version
of an accident.
Accident reports
completed by
other
crewmembers,
however, result
in damaging
admissions
against the
employer for the
life of the
claim.
Accordingly, the
formation of a
sensible
accident
reporting policy
is crucial to
successfully
defending any
Jones Act claim.
Once it learns
of an injury,
the employer
must decide
whether to pay
maintenance and
cure (a living
allowance plus
medical expenses
while
convalescing);
and, if so, how
much and for how
long. Many
employers pay
minimum
maintenance
(perhaps $20 per
day), but this
may be
insufficient for
the employee to
meet expenses.
One consequence
of an
insufficient
living allowance
is to drive the
employee by
financial need
to seek a
lawyer, with a
Jones Act
lawsuit against
the employer as
the likely
outcome. To
avoid that
result, some
employers pay
supplemental
wages or wage
advances during
the employee’s
recovery.
Should the case
proceed to
trial, the
employer can
seek an offset
of the
supplemental
wages;
maintenance is
usually not
offset from a
Jones Act
recovery. Seamen
injured in the
service of the
ship are
entitled to
maintenance and
cure payments
until the
employee reaches
maximum medical
improvement
which is
usually, though
not always, when
the employee is
released to
return to work.
If the seaman
concealed
material medical
problems from
the company
during a
pre-placement
physical, and if
those
pre-existing
conditions are
related to the
current injury,
the employer can
withhold paying
maintenance and
cure or it can
file a claim
against the
employee seeking
the return of
the maintenance
and cure already
paid. The
concealment must
relate to the
same part of the
body allegedly
injured in the
accident at
issue. Should
the case proceed
to trial, these
counterclaims
allow the
employer to
change to
character of the
case entirely.
Seamen can file
their Jones Act
suits in either
state or federal
court, and
oft-times can
choose between a
jury trial and a
judge trial.
These suits are
ordinarily filed
in venues
advantageous to
the injured
seaman. Motions
to transfer
cases from the
chosen forum are
occasionally
available, but
are the
exception rather
than the rule.
To prevail in a
Jones Act suit,
a seaman must
prove that the
employer was
negligent, and
such negligence
contributed„ in
whole or in
part, to the
seaman’s
injuries. This
is often
referred to as a
featherweight
burden of proof.
The seaman can
join that
negligence claim
with an
unseaworthiness
claim, which
requires proof
that the vessel,
its equipment,
or its crew were
not reasonably
fit for the
voyage.
Contributory
negligence by
the seaman will
reduce any
recovery.
Damages include
past and future
lost wages, past
and future
medical expenses
(not already
paid by the
employer), pain,
suffering,
disability and
disfigurement.
Other than the
lost wages and
medical
expenses, the
damages are very
subjective,
allowing the
judge or jury to
assess damages
based in large
measure on
emotion. If for
no other, the
emotion that
forms a jury
verdict compels
employers to
handle all Jones
Act cases
cautiously from
the first notice
of injury to
closing
arguments at
trial.
