A person injured while working at sea, on a navigable river or even aboard a docked ship has a number of remedies available to compensate for those injuries. One of the most frequently- used causes of action arises from a century-old law called the Merchant Marine Act of 1920, more commonly known as the Jones Act.1 Because the Jones Act is a federal law enacted pursuant to Congress’ power over maritime law, an injured worker has the same basic rights available no matter where the injury occurred.2 There are a number of benefits – and some drawbacks – to this approach, but the overall purpose of the Act was to protect those who take on risky or dangerous work for the benefit of our country’s maritime commercial enterprise.3 What follows is a look at the purpose of the Jones Act as well as a discussion of just who qualifies as a “seaman”, who can be sued under the Act, how when and where to sue, what kinds of injuries have been covered, and the kinds of limitations Congress and the Supreme Court have placed on Jones Act cases.
I. The Jones Act – Purpose and Effect
Prior to 1920, an injured seaman had a right to sue a ship-owner for his injuries if the vessel itself was unseaworthy, but not for cases where the employer may have negligently caused the worker to be injured.4 Further, a few states – those did allow for on-board negligence or wrongful death suits – followed the old common law rules of “contributory negligence” and “assumption of risk”, as well as the “fellow servant doctrine”.5 These rules meant that if the seaman was even a little bit responsible for his injuries, or if it could be shown that the worker knew the dangers and took the job anyway, or if the worker was injured because of a co-worker’s negligence, the employer would not have to pay a dime.6 Suffice to say, seamen had a rough time winning compensation for many work-related injuries. Often, the most a seaman could hope to win was for what was called “maintenance and cure”, which simply required the employer to provide food, lodging and necessary medical services during the seaman’s service to the ship.7
After WWI, U.S. naval commerce greatly expanded, and Congress decided to step in to protect the throngs of people now seeking (and continuing) to work aboard a sea vessel.8 In the 1920’s, Congress passed legislation such as the Longshore and Harbor Workers’ Compensation Act (LHWCA), a work comp statute, the Death on the High Seas Act, to cover those killed outside of U.S. territorial waters. It also passed the Jones Act, which allowed for negligence claims against an employer and which abolished the contributory negligence, assumption of risk and fellow servant doctrines.9
The law itself is barebones. Most of its substantive provisions are attached to the Federal Employers’ Liability Act (FELA), an law passed a decade earlier to protect railway workers injured on the job.10 However, because Congress was exercising its Admiralty power under the Constitution to enact the Jones Act, it effectively set a nationwide standard for negligence
actions for seamen.11 Most importantly, since the Jones Act was intended as a “remedial” statute, it has (for the most part) been interpreted by the courts in favor of protecting an injured seaman’s rights. Therefore, one of the first major issues to determine is whether a worker qualifies as a “seaman”.
II. Who Is Jones Act “Seaman”?
The Jones Act was specifically made applicable to “any seaman who shall suffer personal injury in the course of his employment, etc.”12 The term “seaman” has been given a very broad reading, and it is ultimately for the jury to decide if the injured worker qualifies as one. The Supreme Court’s two-part test for determining seaman status is as follows:
First . . . an employee’s duties must ‘contribute to the function of the vessel or to the accomplishment of its mission.’ The Jones Act’s protections, like other admiralty protections for seamen, only extend to those maritime employees who do the ship’s work. But this threshold requirement is very broad: all who work at sea in the service of a ship are eligible for seaman status.
Second . . . a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature. The fundamental purpose of this substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.13
So, the employee need not be involved in the navigation of the ship, but only “do the ship’s work” for a time period defined by his or her work assignment and essential duties.
In the past, a wide swath of workers have been considered seamen for purposes of the act, including:
- A radio operator
- Ferry hands
- Deckhands and foremen on a dredge
- A fireman on a floating derrick
- A pilot
- A watchman during a voyage 14
The term “seaman” is construed so broadly that at one time a court even found a longshoreman injured while loading and unloading cargo alongside deckhands to qualify as a seaman. Most recently, an employee was injured while operating a coal transloader barge – which was stationed on the shore but was loading materials onto a barge. Even though his primary job was located on land, he was found to be a “seaman” under the Act because the transloader qualified as a “vessel” under the Stewart test.15 It seems that only where the sea-connection is tenuous – as when an employee had a six-year break from a ship-related assignment – will the seaman status be an issue, or unless if the employee is specifically covered by the LHWCA, which lists jobs covered by that statute; a discussion of the LHWCA is beyond the scope of this article.16
III. Defendants: Employers (and Others?)
If one of the major questions is “who qualifies as a seaman?”, another equally important one is “who is liable for the injury?”. In most cases, the answer may be simple: the defendant will be the boss, the entity who hired the seaman, sometimes also the owner of the vessel. However, this question is less about who’s signing the paychecks and more about who was in control of the employee’s actions at the time of the accident, since the injury must occur “in the course of employment.”17 So in some cases the Jones-Act-employer may not be the owner of the boat because a contractor (or even a sub) is the one actually directing the employee-seaman’s actions.18 For example, a teamster employed on a farm volunteered to drive a team of horses onto a ship – not owned by his employer – and while aboard, the teamster was injured while handling a mooring line; the appeals court suggested that the teamster might have been a “borrowed employee” and, if so, should be able to press his rights against the ship owner.19
Doctrines like this have often been used by seamen to bring a Jones Act claim against two separate entities if alleged that a borrowing employer had enough control over the employee’s activities when injured (though ultimately a seaman can only be deemed to have one employer, it is for the jury to decide which entity that might be).20 In cases where the boat was chartered to another person/entity, the seaman may be able to sue the chartering party instead of the boat owner or employer; the question again becomes how much control each party had over both the vessel and the employee at the time of the accident.21 Courts often decide these issues by weighing various factors, as the Fifth Circuit in New Orleans demonstrates in its nine-part test that asks:
- Who has control over the employee and work he is performing, beyond mere suggestion of details or cooperation?
- Whose work is being performed?
- Was there an agreement . . . between the original and the borrowed employer?
- Did the employee acquiesce in the new work situation?
- Did the original employer terminate his relationship with the employee?
- Who furnished the tools and place for performance?
- Was the new employment over a period of time?
- Who had the right to discharge the employee?
- Who had the obligation to pay the employee?
“The first factor is the one to weigh most heavily in determining whether an employee has been borrowed, but no fixed test should be applied.”22 Other courts may use a different test, therefore, a detailed analysis of the seaman’s situation is critical to bringing a Jones Act claim.
IV. Procedure for the Suit
There are certain rules that must be adhered to if a seaman wants to bring a Jones Act claim in either state or federal court. If the seaman is not a citizen or permanent U.S. resident or is employed by one who is “engaged in the exploration, development or production of offshore mineral or energy resources…”, or if the incident occurred outside of U.S. territorial waters, the issue becomes more complex.23
The time frame in which a seaman can bring a suit is 3 years “after the cause of action arose”, which will normally be when the injury occurred.24 This is a more firm deadline than a statute of limitations, cannot be waived by the defendant, and must be strictly observed. So, when the estates of two deceased employees could not sue because they had been aware of their illness for more than three years, even though the suit was brought within three years of their deaths.25 Filing a case in the wrong court did not extend the three year period either.26 The only wiggle room a seaman might have regarding this deadline is where the seaman “sustained a latent injury which either is not or cannot be discovered until long after the tortious act that caused the injury occurred,” the court may allow the clock to start upon discovery of the injury.27 There are a few other, unique instances where the three year deadline was extended, but best to consult with an attorney soon after the injury is known.
There are other considerations when bringing a Jones Act claim in federal court, but many of these follow general, federal court pleading concerns. Personal jurisdiction follows normal Federal Civil Procedure rules, no diversity is needed (because the Jones Act falls under the court’s admiralty jurisdiction), and the seaman may choose a trial by judge or jury. State courts also have concurrent jurisdiction over the Jones Act,28 and if a Jones Act case is brought in a state court, it cannot be removed to federal court.29 This is per the explicit command in the FELA, which gives the injured worker the right to choose the forum.30 The Supreme Court has also indicated that the Twombly and Iqbal heightened pleading standards should apply to all federal court cases, which would include Jones Act cases. The preferred practice is State Court for Jones Act.
V. Negligence, Injury, Damages
In order to succeed in a Jones Act case, the seaman must show it is more likely than not that his employer’s conduct fell below a standard of care that would’ve been exercised by a reasonable employer under similar circumstances, and because of the negligent act(s), the employer’s conduct caused the seaman’s injuries. This is similar to other negligence actions, but the Jones Act is very different because a few of the defenses normally available to negligence defendants are not available to Jones Act defendants: notably assumption of risk and contributory negligence (discussed above).31 The duty to maintain a safe tools and a safe working environment is heightened at sea, often because an employee cannot just walk off the job. Further, the ban on “assumption of risk” extends not only to any officer or agent of the employer, but also to any other employee of the defendant.32 The rationale for this goes back to Congressional intent, as summed up nicely by the Supreme Court in 1957:
The law [the FELA, and by extension the Jones Act] was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence. The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit.33
Congress also intended for FELA and Jones Act cases to be heard by the jury, so unless there is absolutely no evidence to make out an element of the seaman’s case, the judge is not supposed to weigh evidence for, say, summary judgment purposes (though it remains unclear how Twombly/Iqbal affects this).34 The jury is also allowed to consider what is called res ipsa loquitur to infer negligence, for example when the seaman may not have any witnesses to describe how the injury occurred but can show that there is only one logical explanation for it.35
Additionally, the kinds of damages recoverable in a Jones Act claim are broad based. The seaman is entitled to lost earnings (past and future), impairment of earning capacity, medical expenses (past and future), other economic loss, pain and suffering and loss of enjoyment of life.36 Wrongful death actions and survival actions are allowed for designated beneficiaries.37 Additionally, the Jones Act can be used in conjunction with the Death on the High Seas Act or the common law “seaworthiness” action.
However, not all is roses for Jones Act plaintiffs. Though the Act was intended as a broad-based protective law, current Supreme Court doctrine has placed a few limitations on the Act’s remedial powers. A seaman is not allowed to sue for punitive damages under the Jones Act because the remedies are defined in the [FELA] statute.38 Additionally, non-pecuniary damages like loss of consortium have been disallowed by the Supreme Court,39 though it may be possible for a seaman to be awarded loss of consortium as attached to an unseaworthiness claim.40 These seeming inconsistencies may be as much about competing visions of the Jones Act at the Supreme Court level as anything.
Even in few areas where the Court has constricted the Jones Act, it is still an act intended and used as a remedial law, “for the benefit and protection of seamen who are peculiarly the wards of admiralty”, and courts across the country have interpreted the act “to enlarge that protection, not to narrow it.”41 There are many factors to consider when bringing a Jones Act case. A qualified attorney can identify these factors and help chart a course forward for an injured seaman.
1 https://www.gpo.gov/fdsys/pkg/USCODE-2014-title46/pdf/USCODE-2014-title46-subtitleIII-chap301- sec30104.pdf
2 Force, Robert and Norris, Martin J., 2 The Law of Seamen § 30:7 Constitutionality (5th ed.) (2015).
3 See, e.g., Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573 (1974).
4 The Osceola, 189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760 (1903).
5 Force, Robert and Norris, Martin J., Ch. 2, The Law of Maritime Personal Injuries § 2:2 (2015).
7 Dunsby v. Transocean, Inc., 329 F. Supp. 2d 890 (S.D. Tex. 2004); Bodzai v. Arctic Fjord, Inc., 990 P.2d 616 (Alaska 1999); Dorsey v. J. Ray McDermott, Inc., 2003-2264 La. App. 1 Cir. 6/25/04, 2004 WL 1418403 (La. Ct.App. 1st Cir. 2004).
8 See Force, supra note 2 at § 30:3.
10 45 U.S.C. §51 (2009).
11See Force, supra note 2 at § 30:3.
12 46 U.S.C. § 30104 (2009).
13 Chandris, Inc. v. Latsis, 515 U.S. 347 (1995).
14 See Force, supra note 2 at § 2:2.
15 Smith v. Kanawha River Terminals LLC, 829 F. Supp. 2d 401 (S.D. W. Va. 2011).
16 See 33 U.S.C. § 902(3) and associated case law for definitions of an LHWCA employee.
17 46 U.S.C. §30104.
18 See, e.g., Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783 (1949).
19 Buffalo & Grand Island Ferry Co. v. Williams, 25 F.2d 612, (2d Cir. 1928).
20 Ogden v. GlobalSantaFe Offshore Services, 31 F. Supp. 3d 832 (E.D. La. 2014).
21 See, e.g., Wheatley v. Gladden, 660 F.2d 1024 (4th Cir. 1981) for the test denoting a ‘bareboat’ charter.
22 Hall v. Diamond M Co., 732 F.2d 1246 (5th Cir. 1984).
23 46 U.S.C. 30105.
24 46 U.S.C. 30106.
25 Miller v. Foster Wheeler Co., 993 P.2d 917 (Wash. App. 1999).
26 Reichert v. Mon River Towing, Inc., 2010 WL 419435 (W.D. Pa. 2010).
27 Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223 (5th Cir. 1984).
28 28 U.S.C.§ 1332.
29 See, e.g., Pate v. Standard Dredging Corp., 193 F.2d 498 (5th Cir. 1952).
30 45 U.S.C. § 56.
31 Drapela v. U.S., 419 Fed. Appx. 500 (5th Cir. 2011).
32 45 U.S.C. § 54.
33 Rogers v. Missouri Pac. R. Co., 352 U.S. 500 (1957).
34 Gallick v. Baltimore & O. R. Co., 372 U.S. 108 (1963).
35 Johnson v. U.S., 333 U.S. 46 (1948).
36 See, e.g., Downie v. U.S. Lines Co., 359 F.2d 344 (3d Cir. 1966); McDonald v. Patton-Tully Transp. Co., 590 F.2d
126 (5th Cir. 1979); Tolar v. Kinsman Marine Transit Co., 618 F.2d (6th Cir. 1980); Fleming v. American Export
Isbrandtsen Lines, Inc., 451 F.2d 1329 (2d Cir. 1971).
37 45 U.S.C. § 30104.
38Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009).
39Miles v. Apex Marine Corp., 498 U.S. 19 (1990).
40Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 (1974).
41Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009).