Offshore and Maritime Accidents
Louisiana and the entire gulf coast has always had a close connection to the maritime and offshore industries. Whether working on an oil rig, a shipping vessel, or a commercial fishing vessel, working on the water can be a dangerous occupation and injuries can happen quickly. Fortunately, offshore and maritime workers are protected by special state and federal laws. If you or a loved one have been hurt while working on the water, you should consult with an attorney experienced in admiralty and maritime claims. Some of the laws that may govern your claim include the Jones Act, the Longshore and Harbor Workers’ Compensation Act (LHWCA), the Death on the High Seas Act (DOHSA), the Outer Continental Shelf Lands Act (OCSLA), general maritime law, or general negligence depending on where your accident occurred.
The Jones Act
The Jones Act is a federal law that allows seamen injured in the course of their employment to sue their employer for personal injury damages. Seamen are not entitled to general workers’ compensation benefits under either state or federal law. Because injured seamen cannot file workers’ compensation claims against their employers, they must seek compensation through the Jones Act and the general maritime law.
To qualify as a seaman, you must spend more than 30% of your time working as a crew member or a captain on a vessel that is “in navigation.” In order to be considered “in navigation” the vessel has to be in operation, afloat, on navigable waters, and capable of being moved. The vessel can be tied up or docked but it cannot be dry docked or out of the water. Oil rigs and casinos permanently attached to the land are not considered to be in navigation. Navigable water includes water ways that lead to the ocean or that cover more than one state. Rivers throughout the country are considered navigable water ways as well as lakes that cross state lines or connect to rivers. A land-locked lake that is entirely in one state would not be considered a navigable waterway meaning a worker’s claims would fall under general state negligence laws and not the Jones Act.
The burden of proof for a claimant is lower under the Jones Act than for a general negligence claim. In a general negligence claim, the injured party must show that another party’s action was the most likely cause of his or her injuries. Under the Jones Act, the injured party must show that the actions of the employer were a cause of his or her injuries, but it does not have to be the most likely cause. An injured seaman can recover all of the usual types of damages available in a personal injury case, such as lost wages, lost earning capacity, past and future medical expenses, pain, suffering, and mental anguish.
The statute of limitations for filing a Jones Act claim is three years from the date of the injury. While the Jones Act is a federal law, the claims may be able to be brought in either state or federal court.
The Longshore and Harbor Workers’ Compensation Act
The LHWCA is a type of worker’s compensation coverage available to certain maritime employees. The Act covers longshoremen, harbor workers, and most other workers on docks and in shipping terminals or shipyards. It also provides coverage to civilian employees on military bases under a separate federal law called the Defense Base Act. For an employee to be eligible for benefits under the LHWCA, at least some of the employee’s work for the employer must be comprised of “maritime” duties. This means that some significant part of the employee’s work has to have something to do with the water or marine transport. This test is pretty broad and the LHWCA provides coverage to longshoremen and others involved in loading and unloading vessels, ship repairmen, shipbuilders, truck drivers that carry shipping containers away from the ships, and the mechanics who repair those trucks. The LHWCA specifically excludes certain recreational ship builders, recreational ship mechanics, general marina workers, fisherman, and workers covered under the Jones Act.
To qualify for coverage under the LHWCA the maritime employee must work on, near, or adjacent to navigable water. This includes eligible employees who work on the water or very close to it such as those working at least part of the time on piers, docks, wharves, terminals, or other areas used by and in the loading, unloading, repairing, dismantling, or building of a vessel.
Injured employees are entitle to receive a percentage of their wages depending on the severity of their injuries. Wage benefits provided by the LHWCA fall into four categories:
- temporary total disability
- temporary partial disability
- permanent total disability, and
- permanent partial disability.
An injured employee is entitled to have all of his or her reasonable and necessary medical treatment paid for and can also receive payment for mileage and other transportation expenses for travel to and from medical treatment.
The Death on the High Seas Act
When a seaman is killed more than three nautical miles off the coast of the United States, DOHSA allows his or her family members to bring a damages claim against the owner of the vessel. In order to prevail, the family member must prove the negligence of an employer, ship owner, or co-worker resulted in the wrongful death or that the vessel was unseaworthy. In addition to applying to cases involving vessels sailing more than three nautical miles off the coast of the US, the law also applies to fatal aircraft crashes beyond the 12-mile international waters limit.
The right to bring a claim under DOHSA belongs to the surviving spouse, children, parents, or siblings of the seaman. However, in order to bring a claim, the relative must have been financially dependent on the seaman. For example, adult children living on their own would not be entitled to bring a claim under DOHSA but a minor child still living at home would be able to bring a claim.
DOHSA only allows recovery for damages that represent financial support and contributions the decedent’s family would have received had the seaman not been killed. Recovery available under DOHSA is limited to funeral expenses, medical expenses, loss of inheritance, loss of support, loss of services, and parental nurture to children. The Act does not allow for recovery of pre-death pain and suffering, lost wages, mental pain and anguish or loss of society. However, if the maritime worker is classified as a Jones Act Seaman, the seaman’s estate can pursue damages for the decedent’s pre-death pain and suffering under the Jones Act. When the decedent’s death was the result of a commercial airline accident, the family can also seek compensation for “loss of care, comfort, and companionship.”
The statute of limitations to file a DOHSA claim is three years of the date of death. This time period can be reduced by contract to one year if the decedent was traveling as a passenger on board a cruise ship.
The Outer Continental Shelf Lands Act
The Outer Continental Shelf consists of all submerged lands lying seaward of state submerged lands and waters (starting at 3 nautical miles offshore) which are under U.S. jurisdiction and control. The OCSLA extends many of the same benefits and protections to workers as the Longshore and Harbor Workers’ Compensation Act but aimed specifically at maritime employees working on the Outer Continental Shelf who are not covered under the Jones Act. The OCSLA extends the Jones Act to various permanent and temporary offshore facilities, structures, or devices, including:
- Artificial islands
- Oil rigs
- Wind turbines
- Storage facilities
- Natural gas extraction rigs
- Floating drydocks
Oil rig workers, longshoremen, mechanics, harbor workers, and ship builders are some of the occupations protected by the OCSLA. An OCSLA claim can include compensation for medical costs, disability payments and rehabilitation costs for workers injured on the OCS. The OCSLA also provides benefits to families of employees who were killed while working on the OCS. Injured OCS workers can claim these benefits no matter who was at fault for the accident that caused their injuries.
Whether the claim has to be filed in state or federal court will depend on where the injury or illness happened. If the injury or illness happened while the worker was inside the three-mile boundary, the case will probably be heard in state court in the state nearest to where the accident occurred. If the injury or illness occurred outside of the three-mile limit, the claim will need to be brought in federal court. Exceptions include accidents or illnesses that occur in Texas, Florida, or Louisiana, whose boundary waters extend beyond the three-mile limit.
General Maritime Law
Under the general maritime law an injured seaman is entitled to Maintenance and Cure. Maintenance includes the room and board of the injured seaman while recovering from an injury. Maintenance also includes expenses like rent or mortgage, utilities, property taxes, homeowner’s insurance, and food, but not things like telephone, internet, or car payments. Cure refers to medical expenses. The employer must pay the injured seaman maintenance and cure benefits until he or she reaches a point of maximum medical improvement.
General Negligence Claims
If your claim does not fall under one of the specific statutes discussed above, it is likely that your claim would fall under general negligence law of the state you were injured in. This would be the case for boating injuries claims arising from non-commercial watercraft accidents. You would need to prove that another person was negligent and that his or her actions caused your injuries. Recoverable damage items would include pain and suffering, emotional distress, mental anguish, past and future medical expenses, lost wages, and wrongful death claims if applicable. You would also be able to bring product liability claims under general negligence if you can show that a boat, jet ski, or some component part was defective and caused your injuries.
Speak With An Experienced Maritime Injury Attorney
If you or a loved one has been hurt while working on the water, you should speak with an experienced maritime attorney about what rights and claims you may have. At the Baton Rouge law firm of Rusty Messer & Associates, we have been helping injury victims and their families for more than 14 years. We have helped our clients recover millions of dollars and we are ready to fight for you. Call our office today at (225) 963-9638 to schedule a free consultation.
CONTACT A PERSONAL INJURY LAWYER TODAY
The law firm of Rusty Messer & Associates handles all types of personal injury claims in Louisiana. We also handle claims and cases related to immigration, felony criminal defense, and family law. Our decades of Louisiana personal injury law experience allows us to successfully represent all of our clients with a personalized hands-on approach.
If you or someone you love has been injured in an accident that was caused by the careless, reckless, or negligent actions of another person or entity, you may be entitled to compensation. Contact an attorney at Rusty Messer & Associates today at (225) 963-9368 to schedule a free consultation.
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