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In addition to the Jones Act, divers and maritime workers are protected by what is commonly called the “General Maritime Law”. The General Maritime Law is the historical accumulation of court decisions rendered by the admiralty courts. The General Maritime Law is often the basis for a diver’s claim against the vessel itself for “unseaworthiness” or claims for negligence against non-employer third party contractors on a job for acts or conditions which cause or contribute to an accident.
A vessel owner guarantees to workers aboard a vessel that it is “seaworthy”.
Should a vessel be termed “unseaworthy” and an injury occurs to a worker as a result of the unseaworthy condition the vessel owner is obligated to compensate the injured worker for damages.
Under Admiralty law a “seaworthy” vessel is defined as one reasonably ft for its intended purpose.
The key difference between Jones Act negligence and unseaworthiness is that a claim for Jones Act negligence may only be brought against the crewman’s employer, while the claim for unseaworthiness must be brought against the owner of the vessel. Although the employer may own the vessel these are separate claims.
Liability based on a claim for unseaworthiness imposes strict liability upon a vessel owner; the vessel owner need not have prior knowledge of the defective condition. For example, where a piece of vessel equipment fails under normal and expected use, the vessel is unseaworthy. A temporary condition, such as mud on the deck during an operation, may render a vessel unseaworthy. Failure to have a properly provisioned vessel, or an undermanned vessel, are classic cases of unseaworthiness.
Every member of a vessel’s crew is entitled to a seaworthy vessel. This entitlement is not limited only to captains, deckhands, engineers, but rather includes every seaman on a vessel. To be a member of the crew it must only be shown that the maritime worker “assists in the function or mission of the vessel.” For instance, if a diver is deployed in a pipe laying process, to either inspect the pipeline or assist in the tie-in at the structure, he or she would be considered a crew member of the pipe laying barge. If the vessel is found unseaworthy, any injury or accident which was sustained as a result of that unseaworthy condition imposes liability on the vessel owner or operator. This responsibility exists at any time, even though the owner or operator may have exercised due care under the circumstances or may have had no knowledge or notice of the unseaworthy condition.
The obligation of the vessel owner to provide a seaworthy vessel is absolute and non-delegable; that is, the vessel owner cannot point the fnger at a third party if an unseaworthy condition was present on the vessel.
In order to prove an unseaworthy condition, the injured diver has to prove that the vessel was not reasonably fit for its intended purpose, and that as a result of that condition, the worker was injured.
A vessel owner who allows commercial diving operations to take place, by law is obligated to provide a vessel “reasonably fit” to conduct diving in a safe and appropriate manner. Such vessels are required to be manned and provisioned appropriately for the mode of diving utilized in the job. For example, a DSV (Diver Support Vessel) engaged in dives to a depth of 220 FSW requires a mixed gas spread, personnel experienced in the mixed gas diving and the tables approved for the depth/time parameters. Lastly, the vessel must be provisioned and manned to address diving medical emergencies; appropriate treatment gas, treatment tables, DDC capacity, and most important, supervisory expertise to handle DCI or AGE injuries.
Often an unseaworthy condition is obvious such as a deck with worn non-skid surfacing or a broken deck plate. Malfunctioning equipment on the vessel can also render it unseaworthy such as an inaccurate pressure gauge, broken jet hose or faulty hot water system. In other cases unseaworthiness can be present but more difficult to detect.
Monetary Damages under the Jones Act or General Maritime Law
The Jones Act and the General Maritime law, unlike other compensation law such as the Longshore Act or state workmen’s compensation laws, entitle the injured seaman to recover dollar for dollar every loss he or she experienced or will experience in the future as the result of an injury.
Some items of damages can be calculated with mathematical certainty such as loss of wages. Other elements of damages, such as mental and physical pain and suffering, require development through documentation of a diver’s experience as well as knowledge of what other courts have awarded in similar circumstances. When projecting medical and other expenses into the future it becomes necessary to utilize the testimony of experts to predict the need for and cost of that care as well as the effects of inflation and other economic indicators.
Generally speaking, the following elements of damages are recoverable in a Jones Act or General Maritime case:
The analysis of damages is never easy or comfortable for an attorney. Unfortunately, the only remedy available under the law is providing monetary compensation for physical and emotional trauma.
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