RPC Jones Act Consultants
Michael Scullin
MHS, CRC, LRC, CLCP
Consultant
Hiral Patel
MHS, CRC, CVE, CLCP
Consultant
Brian Piper
PhD
Senior Consultant
Angela VanDerwerken
PhD
Senior Consultant
Research & Planning Consultants, LP (RPC) provides expert testimony on damages in personal injury cases for plaintiffs and defendants. Besides state law tort cases we work on cases brought under the federal Jones, Longshore, and Railroad Acts. This web page explains damages and other provisions of the Jones Act.
General maritime law and the Personal Injury Jones Act (Jones Act)[1] give “seamen” injury-related benefits and the right to sue their “employer” and/or the shipowner for injuries on the job. These laws require a seaman’s employer to provide a reasonably safe place to work, to use proper care to maintain the vessel on which the seaman works, and to keep the vessel in a safe condition. The Jones Act gives any seaman, from a crewmember to a captain, a personal injury negligence remedy enforced by a complaint filed in federal district court, state court, or both. Unlike the Longshore Act,[2] no administrative agency is involved. In addition to a claim against the employer for Jones Act negligence, a seaman has two other remedies under general maritime law: (1) a claim for maintenance and cure and (2) a claim for unseaworthiness of the vessel.
There is a “zone of uncertainty” about whether an injured worker is a seaman, which is resolved case by case. To qualify as a seaman, a worker must meet two criteria. First, the worker’s duties must contribute to the function of the vessel or to the accomplishment of its mission. Second, the worker must have an employment connection that is substantial in both duration and nature to a vessel in navigation, or to an identifiable group of vessels under common ownership. Regarding the “substantial in duration” requirement, courts often apply a 30 percent rule of thumb. If workers spend less than 30 percent of their time working aboard a vessel or in the service of the ship, they are probably not seamen. Regarding the “substantial in nature” requirement, courts consider such factors as:
- Whether a plaintiff’s work exposes him to “the perils of the sea,”
- Whether the worker owes his allegiance to the vessel rather than simply to a shoreside employer,
- Whether the work is done at sea or involves seagoing activity, and
- Whether the worker’s assignment to a vessel is limited to performance of a discrete task after which the worker’s connection to the vessel ends or whether the worker’s assignment includes sailing with the vessel from port to port or location to location.
Another factor in determining whether an injured worker qualifies as a seaman is the requirement for the vessel to be “in navigation.” A vessel need not be moving to be “in navigation.” Under maritime law, a vessel is said to be “in navigation” if it is floating on water, is operable, can travel unassisted by tugboats or other vessels, and is in navigable waters suitable for domestic and foreign trade, including rivers, oceans, or inland lakes shared by two or more states or linked to other navigable bodies of water.[3] Types of covered vessels include oil rigs, jack-up barges, shipping boats, production platforms anchored to the seafloor, and more.
An injured seaman has three main remedies against the employer and/or the shipowner depending on the facts of the case:
- A maintenance and cure claim (against the seaman’s employer)
- A negligence claim under the Jones Act (against the seaman’s employer)
- An unseaworthiness claim (against the shipowner)
Maintenance and Cure Claims
A maintenance and cure claim is brought under general maritime law and pays a seaman’s daily expenses and necessary medical expenses after a work-related injury. This type of claim does not require proving the employer was negligent. Punitive damages may be available under general maritime law if an employer or carrier willfully or wantonly denies maintenance and cure to a seaman.
The party responsible to pay a seaman’s maintenance and cure damages is the seaman’s “employer,” which is determined under the same test for employer liability for negligence as under the Jones Act. Typically, the employer as the owner of the vessel has responsibility for maintenance and cure. In some cases, however, the employer may be someone other than the shipowner. Courts have employed various tests and factors to determine the employer responsible for maintenance and cure under the Jones Act.
If the injury causes the death of the seaman, the Jones Act does not permit survivors to bring claims for lost future earnings. It limits survivor damages to financial losses sustained by the deceased seaman, such as pre-death medical expenses, loss of income and pain and suffering.
Negligence Claims
A negligence claim under the Jones Act lets an injured seaman recover a wider spectrum of accident-related damages, if they can prove negligence by the employer. To establish the employer’s liability for negligence under the Jones Act, a seaman need only prove that the employer’s negligence had any part, however small, in causing the injury.
Under a Jones Act negligence claim, a seaman can sue for a wider range of economic and non-economic tort damages than under a maintenance and cure claim. Economic damages include past and future wage loss, loss of earning capacity, past and future fringe benefit value, and past and future medical expenses. Non-economic damages include mental and physical pain and suffering and loss of quality of life. However, a seaman cannot recover non-pecuniary damages (such as loss of consortium and punitive damages) on a Jones Act negligence claim.
Lost Income and Lost Earning Capacity
Following the Fifth Circuit’s decision in Culver v. Slater Boat Co., federal courts within the Fifth Circuit must apply a four-step process to calculate the future lost earnings of an injured seaman:
- Estimate the loss of work life resulting from the injury,
- Calculate the lost income stream,
- Compute the total damage, and
- Discount the amount to its present value.
Lost income and lost earning capacity refer to the income from the job the injured seaman has lost, is losing, and/or will lose because of the injury. This includes any employment benefits the injured seaman may have lost or is reasonably likely to lose because of the injury, such as health insurance, vacation time, pensions, or 401K contributions.
- To calculate past lost earnings, one adds the injured seaman’s earnings and the value of the employment benefits missed due to the work injury.
- If a seaman suffered an injury that prevents him from returning to work as a seaman, the calculation of future lost earnings and future earning capacity is calculated by determining the difference in the injured seaman’s post-injury earning capacity and his earning capacity at the time of the injury, including lost benefits.
- The Jones act has been interpreted to require the use of net after-tax income to determine a loss of earning capacity. Any future values must be discounted using a “below market discount rate,” meaning a real discount rate that does not account for the effect of general inflation[4]
The services of a vocational expert are often needed to help an economist determine the injured seaman’s post-event earning capacity. This is typically done through a vocational analysis that consists of some or all the following: a review of medical and other records, an interview with treating or consulting medical providers, a vocational interview, vocational testing of the injured worker, a transferable skills analysis, and a labor market analysis.
Once the injured seaman’s future lost earnings are determined, an economist can calculate the present value of the lost earnings.
Medical Expenses
Injured seamen can receive benefits to cover past medical and healthcare bills, but to cover projected expenses for medical care related to the injury that will likely happen. Injured seamen have the right to recover expenses for most reasonably accepted healthcare treatment, including reasonable transportation expenses to get to treatment, physical therapy, occupational therapy, vocational therapy, massage therapy, full-time nursing care, mental health treatment, counseling, acupuncture, and more. If an injured seaman has received maintenance and care benefits for a specific injury, medical expenses already covered cannot be included as part of the seaman’s later negligence claim.
Pain and Suffering
Injured seamen are entitled to recover damages for all pain, suffering, and mental anguish experienced because of their on-the-job injuries. Mental pain and suffering can be broken down into two categories:
- Physical: including physical pain and suffering from the actual injuries and pain and suffering from scarring, disfigurement, and permanency of the injuries.
- Mental: including mental anguish, emotional distress, loss of enjoyment of life, fear, anger, humiliation, anxiety, shock, lack of energy, sexual dysfunction, loss of interest in sex, mood swings, and/or sleep disturbances.
Loss of Enjoyment of Life
Injured seamen are entitled to recover damages for losing enjoyment of life due to their on-the-job injuries. For example, loss of mobility, constant pain, and lack of physical stamina may prevent injured seamen from enjoying leisure activities or spending time with friends, family, or loved ones as they did before the injury. It may be challenging to separate this element of damages from future pain and suffering, particularly mental suffering.
Unseaworthy Vessel Claims
In addition to claims for maintenance and cure and Jones Act negligence, a seaman may have a claim that the vessel had an unseaworthy condition that proximately caused his injuries. To have a claim for unseaworthiness, a seaman must show that his injury was caused by a defective condition of the ship, its equipment, or its appurtenances. Unlike claims for maintenance and cure and Jones Act negligence, which are brought against the seaman’s employer, an unseaworthiness claim is asserted against the shipowner (who is often, but not always, the employer). Like claims for Jones Act negligence, a seaman’s recovery for a claim of unseaworthiness is limited to financial damages; non-pecuniary damages (such as punitive damages) are not available.
RPC’s team of life care planners and economic and vocational experts can provide the services to determine the economic damages of an injured maritime worker. After receiving a referral, RPC’s team of experts will review the available medical, financial, personnel, and background records for the injured worker and any expert reports filed by the seaman’s attorney to complete a life care plan and a comprehensive vocational evaluation, as the case requires. RPC’s experts may need the opinions of the injured worker’s treating doctor(s), or of retained medical experts, on the injured worker’s post-injury physical and cognitive capabilities. Once temporary and permanent impairments are identified, the vocational expert will conduct a transferable skills analysis and labor market analysis to determine what types of jobs are appropriate for the injured worker, given the applicable work restrictions. RPC’s economists can calculate the discounted present value of the lost earning capacity and of future medical expenses.
Sources
46 U.S.C. §30104
https://www.maritimeinjuryguide.org/jones-act/compensation-jones-act/
https://www.law.cornell.edu/wex/jones_act
[1] 46 U.S.C. §30104, https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title46-section30104&num=0&edition=prelim, accessed May 20, 2024.
[2] Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901-950 (1927).
[3] Maritime Injury Guide, Jones Act, “Who Qualifies Under the Jones Act?” https://www.maritimeinjuryguide.org/jones-act/who-qualifies-under-jones-act, accessed June 3, 2024.
[4] Culver v. Slater Boat Co., 722 F.2d 114, at 117(“Culver II”).
For more information, contact Athenna Dill, Personal Injury Case Manager, 512.371.8005, adill@rpcconsulting.com.
Learn More About RPC’s Loss of Earning Capacity Services Here
Learn More About RPC’s Life Care Planning Services Here
Learn More About RPC’s Vocational Consulting Services Here