SEAMAN: WARDS OF THE COURT
By Allen E. Graham

Seaman are entitled to special rights and remedies under Admiralty Law which are not available to other types of workers. The reason for this is both historical tradition and the fact that seaman are required to endure special perils of the sea and hardships in order to accomplish their work related duties. Whether a particular person is a "seaman" is a mixed question of law or fact, usually for the jury or the judge to decide. A "seaman" is defined as one who is permanently attached to a vessel or fleet of vessels in navigation and whose duties contribute to the overall mission of the vessel. A seaman was traditionally considered a ward of the court and entitled to the following special protections:

(1) Maintenance and Cure - A shipowner is obligated to provide maintenance and cure to a seaman for illness or injuries arising out of his employment relationship. "Maintenance" is the right of a seaman to food and lodging if he falls ill or becomes injured while in the service of the ship, and contributory negligence on the part of the seaman will not prevent his full recovery of maintenance or cure. Maintenance is provided from the time of injury until the seaman fully recuperates from the injury or illness and the amount of maintenance is usually set between $5 and $30 per day. "Cure" is the right of a seaman to necessary medical services from the time of his illness or injury to the point of maximum medical improvement. A shipowner who willfully refuses to pay maintenance and cure may be liable to a seaman for damages thereby caused to the seaman, including attorney'sfees and expenses.

(2) Repatriation - A seaman is entitled to the reasonable and necessary traveling expenses (plane fare, bus fare, etc.) required to return him home from his discharge port. A seaman's entitlement to repatriation is in the nature of wages and gives rise to a preferred maritime lien against the vessel.

(3) Unseaworthiness - In an old United States Supreme Court case, THE OSCEOLA, the Court held that "the vessel and her owner are liable for injuries received by a seaman in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances pertinent to the ship." In order to recover for unseaworthiness, a seaman must prove that his injuries were caused by a defective condition of the ship, its equipment, crew or appurtenance. An insufficient or inadequate crew can be the basis of an unseaworthiness claim. Whether a vessel is unseaworthy is usually a question of fact to be determined on a case by case basis. The shipowners duty to provide a seaworthy vessel as absolute and independent of any negligence, but the mere fact that there was an accident aboard the vessel is not enough for finding of unseaworthiness. The test for an unseaworthy condition is whether the vessel, equipment, crew or appurtenance was reasonably fit for its intended use or voyage.

(4) The Jones Act - The Jones Act was passed in 1920 and allows a seaman who suffers personal injuries during the course of his employment to seek damages in a jury trial against his employer in the same manner as the Federal Employers Liability Act (FELA) allows claims by railroad employees against their employers. Proof of negligence is essential to recovery under the Jones Act but such negligence may arise from a dangerous condition on or about the ship, failure to use reasonable care to provide a seaman with a safe place to work, failure to inspect the vessel for hazards, or any other breach of the shipowner's duty of care. The doctrines of Contributory Negligence and Assumption of Risk do not bar recovery by the seaman but rather apply to allocate fault and apportion damages on a comparative basis. In a Jones Act case, negligence is the failure to exercise the degree of care which an ordinary prudent person would use under the circumstances in discharging the duty that he or she owes to those who work on a vessel. The shipowner has a continuing duty to provide a reasonably safe working condition. Both the employer and the seaman are subjected to the same standard - the ordinary care standard of negligence under the Jones Act. A seaman is entitled to recover under the Jones Act if his employer's negligence is the cause, in whole or in part, of his injury. The circumstances of the seaman's employment include not only his reliance on the employer to provide a safe work environment but also his own experience, training or education. In other words, an employer is entitled to rely on the education, experience and training of the seaman in performing his duty so as to prevent injury. The damages available under the Jones Act are generally limited to pecuniary damages like past and future medical bills and expenses and past and future loss of earnings or earning capacity.

(5) Wages - Seaman on an American vessel must be paid the Federal minimum wage under the Fair Labor Standards Act. Even if a loss or wreck of the vessel ends the seaman's service before the end of the period contemplated by the voyage and the seaman's employment agreement, the seaman is entitled to wages for the contracted period. The Master of a coastwise cargo vessel must pay a seaman promptly at the end of each voyage the balance of the wages due the seaman within 24 hours after the cargo has been discharged or within four days of the seaman being discharged, whichever is earliest. If payment is not made "without sufficient cause", the seaman must be paid two days wages for each day payment is delayed. There is a separate regime for the recoverage of wages by seaman aboard fishing vessels. The Master must enter into a written fishing agreement with each seaman employed on the vessel if the vessel is at least twenty gross tons and on a voyage from a port in the United States. The agreement must be signed by the owner of the vessel and the seaman and must include the wage, share or other compensation arrangement agreed to by the parties. The seaman has a cause of action in rem against the vessel for his wages, share or to enforce his compensation arrangement. Such an action must be brought within six months after the sale of the fish caught by the vessel. Good luck and safe boating!