The Ohio River is formed by the confluence of the Allegheny and Monongahela rivers in Pittsburgh, Pennsylvania. It flows in a generally southwest direction, joining the Mississippi River near Cairo, Illinois. It has several major tributaries, many of which are utilized for significant maritime activity. The most common form of commercial maritime activity on the Ohio River and its tributaries involve the use of tow boats pushing barges carrying dry bulk cargo, chemical and/or petroleum-based products. Ohio River workers generally work aboard line haul boats which transport cargo from location-to-location or as harbor or fleet workers who work with barges at a local facility. If you have been injured or a loved one has been killed while working on the Ohio River, federal maritime law applies. Maritime law is unique and differs in many respects from state or federal land-based law.
Individuals who are injured or killed while serving as crew members aboard vessels are covered by the Jones Act. The Jones Act is a negligence statute that was originally passed in 1920 by the U.S. Congress in an effort to protect the rights of crewmen injured during the course of their employment. In 1949, the Supreme Court spoke to the policy and reasoning underlying the law:
“It was designed to put on the …industry some of the costs for the legs, eyes, arms, and lives…consumed in its operations.”
Over the years, thousands of court decisions have interpreted the Jones Act, construing it to mean that any negligence on the part of the employer which causes or contributes to a crew member’s injury, however slightly, is sufficient upon which to fix liability. In other words, any time an employer has been negligent and a crewman has been hurt, the injured worker has a remedy in court. Workers with a substantial connection to a vessel in navigation whose duties contribute to the function of the vessel are defined as crew members or seamen. From a captain to a busboy and all jobs in between, anyone with a substantial connection to a vessel in navigation is covered. A worker need not be part of the navigation crew to be covered, and even if a vessel is docked, if it’s staffed and ready to go, it can be considered “in navigation.”
Under maritime law, a shipowner has an absolute and non-delegable duty to provide a seaworthy vessel for its crew. The doctrine of unseaworthiness is a separate and distinct theory of liability (apart from the Jones Act) against a shipowner/employer. When this duty is breached, the vessel is said to be unseaworthy. Unseaworthiness means that some aspect of a vessel, her equipment or crew, is not reasonably fit for its intended purposes. Unseaworthiness can arise from insufficient manpower for a task, defective equipment, or an unsafe condition. In the eyes of the law, unseaworthiness does not mean the vessel must sink to be considered unseaworthy. The vessel owner is responsible for injuries caused by unseaworthy conditions, whether or not he or she knows of them. A vessel must have proper safety equipment, a safe way to board and exit, safe equipment, and a generally safe working and living environment.
Both the Jones Act and the general maritime law doctrine of unseaworthiness allow for recovery of compensatory damages. Compensatory damages are designed to compensate the victim for his losses and make him whole. They can include payments for lost income, pain, suffering, mental anguish, loss of life’s enjoyment, embarrassment, scarification, and loss of future earning capacity. If you have been injured as a result of negligence or unseaworthiness, you may be entitled to compensatory damages. Additionally, in some circumstances, an injured worker may also be entitled to punitive damages. As its name suggests, punitive damages are designed to punish the wrongdoer for his misconduct and/or curb the wrongdoer and others from engaging in similar conduct in the future. The courts have allowed punitive damages for a shipowner’s willful and callous failure to pay maintenance and cure as well as an employer’s willful and wanton breach of the general maritime law duty to provide a seaworthy vessel. Whether an injured worker is entitled to punitive damages is always a fact-intensive inquiry.
MAINTENANCE AND CURE:
Jones Act seamen are generally entitled to maintenance and cure whenever they are injured and/or fall ill while in the service of their vessel.
Maintenance is a daily sustenance allowance paid to a seaman for any illness or injury sustained in the service of the ship, until maximum medical improvement is reached regardless of fault or blame (unless the injury or illness results from willful misconduct, such as drunkenness, of the crew member). In layman’s terms, if a crew member is injured or becomes sick while working, the employer must make periodic payments to the seaman. It does not matter who is to blame for the injury or sickness so long as it happens while the seaman is working. Comparative negligence is not a defense. The amount of maintenance you receive is supposed to approximate your reasonable daily living expenses and includes an amount for lodging, food, utilities, transportation and other necessary living expenses.
Cure is payment for reasonable and necessary medical treatment. If a seaman is injured or falls ill while working, he is entitled to have his medical bills paid for by his employer.
*Dennis M. O’Bryan is enrolled to practice before the Third, Fourth, Sixth and Seventh Circuit Court of Appeals which hears appeals from the federal district courts of Pennsylvania (3rd), West Virginia (4th), Ohio and Kentucky (6th), and Indiana and Illinois (7th), respectively. He is a member of the bar of the federal districts for the Western District of Pennsylvania, Southern District of Indiana, and Southern District of Illinois. In those federal district courts in which he is not generally admitted to practice, he gains admission pro hac vice, on a case by case basis, by securing the sponsorship of a reputable local attorney. He is a member of the State Bar of Michigan, where his office is located.