Delise and Hall: Admiralty Attorneys - New Orleans, Louisiana Law 4 Seamen

Jones Act & Admiralty Law FAQ

In counseling America's professional mariner we at Delise and Hall hear similar questions. Here are but a few of the "Frequently asked questions".

Maintenance Payments for the Injured Mariner

I've been hurt offshore and my company says all I'm entitle to is $35 per day for maintenance (maritime workers' compensation), is this all I'm entitled to?

A mariner injured in the service of a vessel is entitled to the maritime equivalent of worker's compensation, more commonly known as maintenance, and payment of all medical treatment, more commonly known as cure. The right to receive maintenance and cure benefits is the most sacred legal right under Admiralty Law. A vessel owner must pay the seaman his full living expenses as he recuperates from an on-the-job injury.

Maintenance is defined as "financial resources by which the injured seaman can weather the financial storm surrounding an occupational injury offshore." It also includes the expenses necessary to repatriate the seaman to his or her home. Maintenance includes the amount of money per day sufficient to defray the cost of food, lodging and utility expenses during his period of convalescence. Lodging expenses include expenses for rent, home mortgage and utilities.

Contrary to popular belief, a company may not arbitrarily choose payment, say $35 per day, and submit that it is satisfying its obligation under maritime law. If the maintenance payment fails to satisfy the mariner's daily living expenses, it is not only unfair to the mariner, it is against the law.

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Jones Act Benefits versus Benefits under the Longshore and Harbor Worker's Compensation Act

I have been told that my claim falls under the Longshore and Harbor Worker's Compensation Act, not the Jones Act. I always thought that all commercial mariners are covered under the Jones Act.

What's the difference between the two, and which law provides the greater remedy for a mariner?

Most mariners working from vessels are Jones Act seamen as a matter of law. As long as the mariner is in the service of a vessel and is more or less connected to that vessel, or a fleet commonly owned, he is by law a Jones Act seaman. Some courts go so far as to proclaim that when a mariner is working at depth he is "a vessel unto himself". In those rare occasions where there is no vessel connection the mariner is protected under the Longshore and Harbor Worker's Compensation Act. In some states, such as Louisiana, the mariner is a Jones Act seaman even if he dives from a platform or structure. The differences in benefits under each act are significant.

Perhaps the most widely recognized legislation in the area of maritime personal injury is the Merchant Marine Act of 1920, more commonly known as The Jones Act. The Jones Act provides that the employer of mariner is legally responsible for any damages sustained by an injured mariner as a result of the negligence of the employer, a co-employee, or an agent of the employer. In brief, if a Jones Act employer, co-employee, or agent acts unreasonably (negligently) in its maritime activity and such action brings about harm to its mariner, mariner contractor must compensate the worker for all damages he sustained. Under the Jones Act the injured, the mariner would be entitled to all of his past and future loss earnings and earning capacity, pain and suffering and any other proven damages.

Under the Longshore and Harbor Worker's Compensation Act the injured mariner is provided a stipend or allowance based upon 66.66% (2/3rds) of his annual average earnings, with a maximum of $1,047 and a minimum of $261.79 per week. The allowance is provided until the mariner recovers or, in the event the injury is permanent, for a for a set number of weeks based upon table provided by the U.S. Department of Labor. In addition to the compensation benefits the Longshore Act also provides that the worker is entitled to all costs for medical care and treatment as well as travel expenses to and from such treatment. Additionally, the worker is entitled to select the doctor of his or her choosing as long as the appropriate procedures are followed.

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Unpaid Maritime Wages

I completed my work offshore on a vessel, it's been two weeks and I have not received my pay check. I just can't get my paycheck.

What are my legal rights?

The law with respect to failure to pay seaman's wages is very clear and provides significant penalties under Federal Maritime Law.

Under the Federal maritime Law the Penalty Wage Statute provides;

At the end of a voyage, the master shall pay each seaman the balance of the wages due the seaman within 24 hours after the cargo has been discharges or within 4 days after the seaman is discharged, whichever is earlier.

When payment is not made as provided without sufficient cause, that master or owner shall pay to the seaman two days' wages for each day payment is delayed.

Should the seaman not be paid there exists a maritime lien on the vessel. This lien primes any other lien, including a vessel mortgage.

How does the law define "without sufficient cause"? The only way a master or owner can avoid payment is if the owner is insolvent and financially can not pay the seaman.

If the seaman is not paid within the times mandated by law the burden shifts to the vessel owner to prove that the owner was unable to pay the seamen.

Obviously, this Federal Law gives the seaman a strong tool at his disposal to seek the enforcement of this longstanding legal right.

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The Injured Mariner's Post Accident Check List

I was just injured while working offshore.

What should I do?

First of all, don't panic. The maritime law was written to protect your legal rights in time of peril. The Jones Act was written to provide mariners with more legal rights than land based workers in an attempt to encourage young men and women to enter the maritime work force. If you are a mariner, the law is on your side.

Most importantly, first find the finest in medical support, advice and counsel. Locate a qualified occupational medicine doctor, closely follow his/her advice and allow your doctor to all of your medical treatment.

Under maritime law an injured mariner is entitled to his choice of medical providers; and, the mariner contractor remains obligated to pay for the mariner's medical expenses, his travel to and from the heath care provider and medical facility, and lodging should the mariner reside out of town.

Documentation of incident causing the injury is paramount. Secure the vessel logs and any other document which could establish the events which surrounded the event. If possible get a copy of the accident report or witness statements.

Prior to seeing your doctor sit with your wife/husband, girlfriend/boyfriend or family member, and make notes of your complaints. Write down any questions you may have for your doctor. Your doctor is busy and in a hurry; you are nervous or your memory isn't what it should be. Having notes helps. If you are concerned that your doctor is not closely listening to your complaints give him a copy of your notes.

If possible avoid giving an oral or written statement until you have consulted with an attorney. There is no need to immediately hire an attorney; speaking with one may prove valuable at a latter date. Be suspicious of someone who tells you that you must give a statement before the company can begin maintenance payments. Such is not the law.

Maintain a personal log of the events which have occurred following your return to shore. Chronicle your doctor visits, medical examination and procedures. The medical specialist you see will want to know as much as possible about your history. Keep a log; it's better than you memory.

Retrieve all of your medical records including medical reports from your treating physician and specialists. The insurance company adjuster and your company safety officer will have access to your medical records. Shouldn't you?

At times it will seem that everyone has advice to give you. It's foolish to take medical advice from anyone other than a doctor familiar with the type of injury of which you are suffering, that includes your company representative, your buddy, your family or your spouse or significant other. It's foolish to take legal advice from anyone other than a maritime lawyer familiar with maritime law; that includes your company representative, your buddy, your family or your spouse or significant other. While everyone wants to give advice to the injured mariner advice, only the injured mariner has to pay the consequences of poor advice.

Finally, don't be rushed to make any decision until you are confident that you have most, if not all, your concerns and questions addressed. Don't be rushed to settle your claim, hire an attorney or go back offshore until you are fully ready to do so. It's your career, no one else's.

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Hiring an Attorney

How do I know when I need to hire an attorney?

How do I select a good one?

In brief, one should consider hiring an attorney when the mariner feels so uncomfortable that he believes he is entering "un-chartered waters", an area so unfamiliar to him that he is getting very anxious about securing his rights under maritime law. It is also suggested that a mariner not hire an attorney unless he has a career threatening injury. Be confident in knowing that all information shared in conversations with an attorney is confidential. The attorney is duty bound by law not to disclose in any consultation even if the mariner never retains the services of the attorney. Consider the conversations "safe harbor".

Simply speaking with an attorney does not commit the mariner to instituting litigation and suing his employer. Consulting an attorney simply provides the mariner with the fundamental tools needed to make an informed decision.

While we do not suggest hiring an attorney unless the mariner's career is in peril, it is highly recommended that a mariner consult an attorney if he feels he is in need of advice and counsel. to make rational decisions.

The process of hiring legal counsel is often as traumatic as talking with an adjuster or an insurance company representative. It should not be so as long as one keeps in mind that hiring an attorney is just that - one hires an attorney much like hiring an employee. The attorney works for the client, not vice versa. An attorney client relationship does not exist unless the attorney and client formally enter a written agreement memorializing the agreement. Additionally, the agreement should specify the terms of the agreement. The terms may be based on a contingency or hourly agreement; the agreement should also specify how the expenses are to be repaid.

Be aware of the rules that govern the conduct of attorneys. It is a felony in some states, such as Louisiana, for an attorney to pay individuals or "runners" money or "finder's fees" for getting a mariner to hire an attorney. If an attorney will "buy the case" he will most certainly "sell the case". Bar association and state law govern how attorneys can assist a client with living expenses paid through "client advances" on the case. In some states an attorney may be disciplined, or even disbarred, for promising money to get the case or keep the case. The last thing an injured mariner wants is for his attorney to be disbarred in the middle of his case.

If there are questions about the conduct of an attorney simply call the Bar Association where the attorney practices.

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A Girlfriend's Legal Right to File Suit if Her Boyfriend Dies while Working Offshore

My boyfriend and I have been living together for years. We are not married though we do have a child together.

Do I have any legal rights if my boyfriend dies; and if not, who has the right to sue the mariner company or private entity that caused his death?

The only situation where the girlfriend of a deceased mariner is entitled pursue a legal claim for her personal damages and loss of financial support occurs when the couple was domiciled in a state which recognizes "common law marriages" prior to his death. In those states which do not recognize common law marriages, such as Louisiana, the girlfriend has no right to pursue a legal claim. If the couple had a child together the mother may present the child's claim as the child's legal representative. If the mariner leaves no children all of the rights to pursue the mariner's claim or the family member's claims go the "family" of the mariner, starting with the parents.

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Maritime Statute of Limitations

I was injured offshore in a mariner accident at work

How long do I have to bring my claim?

Most maritime actions, including injury or death, are governed by a three year statue of limitations meaning that suit must be filed within three years of the date of the accident. Waiting the full three year period to file a suit may be a very risky decision. In most cases finding the proper party may be a difficult and time consuming problem. Over time witnesses lose their memories, disappear or die. Over time key evidence is lost, destroyed or spoils. Companies go bankrupt.

Even if an injured mariner or his surviving family decides to delay instituting litigation until the last minute it is imperative that a skilled investigator or legal counsel initiate a professional investigation as soon as possible.

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Delise and Hall
New Orleans, Louisiana
Phone:(504) 836-8000 / (800) DIVER 55 (348-3755)