U.S. Longshore and Harbor Workers Act v. the Jones Act and Marine Employers Liability: The Marine Coverage Bermuda Triangle, Part 3July 27, 2018
Robert K. Riske, Senior Vice President, Worldwide Facilities – Los Angeles
Ryan C. Riske, Assistant Vice President, Worldwide Facilities – Los Angeles
The Jones Act
The Jones Act and the Death on the High Seas Act are two marine coverages that provide broad relief to seamen. As part of maritime employers’ liability coverage, employers will encounter the need for coverage under the Jones Act. Agents must educate employers who fail to recognize that need.
The Merchant Marine Act of 1920 structures the basis of the Jones Act. Unlike employees covered by workers compensation statutes, which typically limit the right to sue of injured workers or their survivors, the Jones Act allows seamen to bring a negligence action against their employers. The employees for Jones Act purposes can be direct employees or borrowed employees. Seamen can bring suit in state or federal court, and injured seamen or their survivors can elect a jury trial.
Jones Act damages include past and future wages, future impairment of earning capacity, medical expenses, past and future pain and suffering, disability and mental anguish.
Who Is a Seaman?
The Jones Act considers any person a seaman who works as a crewmember or vessel captain in navigation. The terms listed below legally define when a vessel is “in navigation.”
- In operation
- Able to move
- On navigable waters
A vessel can be dockside or under sail, but does not have to be moving or at sea to qualify as “in navigation.”
Because “seaman:” is not defined in the statutes providing them with these special protections, it is necessary to analyze the case law interpreting the statues and come up with a general rule.
To qualify as a seaman, a maritime employee must be a sea-based employee and a “master or a member of a vessel’s crew” who contributes to the ship’s work. It is not necessary for the employee to assist in the navigation or transportation of the vessel, but the employee “must have a connection to a vessel in navigation (or to an identifiable fleet of such vessels) that is substantial in terms of both its duration and its nature.”
However, according to 46 U.S.C.S. 10101(3), a seaman is an individual (except scientific personnel, sailing school instructors, or sailing school students) engaged or employed in any capacity on board a vessel.
A seaman is any person who spends a significant portion, usually 30 percent or more, of his or her working time as a crewmember or a vessel captain.
The Jones Act requires maritime employers to provide a reasonably safe workspace and to use ordinary care to keep the vessel in a reasonably safe working condition. Unseaworthiness does not mean the vessel is so compromised it cannot sail. A minor unsafe condition can lead to liability under the Jones Act. Even if the employer’s negligence played only a small part in the injury, such as one percent, a seaman usually can prevail against the employer.
The Jones Act considers unseaworthiness as strict liability, which is why plaintiff attorneys target these types of cases. The injured party need only point out the presence of a hazard. A claim of unseaworthiness can be brought either in conjunction with the Jones Act or alone.
Wages, Maintenance and Cure
Wages, maintenance and cure are important concepts in marine coverage. Unlike state-mandated workers compensation coverage where medical bills and lost wages are the key component, injured or ill sailors or those working adjacent to navigable waters are entitled to a different type of damages, called maintenance and cure payments. Maintenance covers a sailor’s day-to-day living expenses and medical bills, called “cure,” and are costs recoverable by the seaman. The injured or ill employee may bring this claim either alone or in conjunction with the Jones Act.
Death on the High Seas Act
The Death on the High Seas Act (DOHSA) is an additional remedy available to the survivors of those who die at sea.
Jones Act: Protection & Indemnity
Under the Jones Act, a Protection and Indemnity policy form (P&I) usually provides the coverage. Because maritime law is complicated, P&I claims tend to offer little certainty, and it is difficult to value these claims due to the many variables and laws that may apply, which further impacts rates.
While no law requires it, employers who do not buy maritime employers liability face uninsured exposures, including:
- transportation, maintenance and cure, and wages through the end of the ship’s journey,
- defense of the claim, which is expensive to defend, and
- potentially large judgments.
The plaintiff bar understands the risks employers face with these types of claims and may assert a Jones Act claim when its applicability is uncertain. In one 2013 case, Mala v. Crown Bay Marina, the plaintiff Mala left his boat while fueling at a marina. By the time he returned, the tank had overflowed, spilling fuel into the boat and water. As he departed the marina, the engine caught fire and exploded, throwing him into the water and severely burning him. The court ruled that maritime law applied because “the alleged tort occurred on navigable waters….”
Called by one maritime attorney “the broadest workers compensation system in America,” the Jones Act is a comprehensive law that provides maximum benefits to injured or ill seamen. The history of seamanship is rampant with cruel working conditions, some of the harshest in the world. As early as 1823, the courts considered seamen as wards of the court, “poor and friendless… [who] suffer the accumulated evils of disease and poverty, and sometimes perish from the want of suitable nourishment….”
For this reason and due to the significance of maritime endeavors to our economy, the courts will liberally construe claims brought by seamen. It is little wonder that getting coverage right under the Jones Act is critically important given our court’s appreciation for their work.
We’ve covered a big expanse in this three-part article. No matter which maritime coverage you write, it is critical you understand your account and all of its exposures. Make sure you understand your account’s navigation and territorial limits. If you’re uncertain whether your account has longshore exposures or marine liability exposures, consult with an expert on options to offer various coverages to prevent uncovered claims.
The best way to impress an underwriter is with a quality submission. Whether you are an old hand at writing maritime coverages or a newer agent who wants to enter the ocean deeps, an experienced wholesale broker can help you navigate the murky waters of maritime insurance coverage.
The biggest challenge you will face is ensuring you offer all the coverage required by the account and that you document those offerings.
Whether you are courting smaller or mid-sized accounts with marine exposures or in marine construction or harbor-related risks, an experienced wholesale team can bring your account successfully to market in a limited carrier space.
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