Statute of Limitations under the Jones Act and General Maritime Law
STATUTE OF LIMITATIONS UNDER THE JONES ACT AND GENERAL MARITIME LAW
The Statute of Limitations in a Jones Act case is generally three (3) years from the date of the injury. There are exceptions to this general rule; a seaman assigned to vessel owned, operated, or contracted by the United States government is such an exception. Actions against the vessel owner for unseaworthiness, must also be brought within three (3) years from the date of the seaman’s injury. It is generally a mistake to wait several months post injury to consult an attorney. While the diver and his attorney may ultimately decide not to file a lawsuit, or even have an attorney contact the diving company, the advice of an experienced maritime attorney in the critical days immediately post accident is invaluable.
OTHER REMEDIES AVAILABLE UNDER MARITIME LAW THE LONGSHORE AND HARBOR WORKERS COMPENSATION ACT
The Longshore Harbor Workers’ Compensation Act is a federally administered program providing wage compensation and medical benefits to individuals who sustained injury or contracted an occupational disease while employed on a navigable waterway or the adjoining areas that are primarily involved in the loading, unloading, repairing or building of a vessel. In the event of death, the LHWCA provides for compensation benefits to be paid to the employee’s dependents. It is the federal equivalent of state workers compensation and provides only limited benefits.
Benefits for permanent and temporary total disability are calculated at two-thirds of the pre-injury average weekly wage. An injured employee’s average weekly wage is an average of the earnings over the past 52 weeks. Therefore, individuals with long periods of unemployment or underemployment will have a substantially lower average than they may believe is appropriate based on their recent earnings.
Benefits for temporary partial disability is paid at a rate of two-thirds the weekly wage loss, based on loss of earning capacity. Permanent partial disability payments are intended to compensate the injured employee for the permanent loss of a body part or bodily function. The compensation for such a loss is based on a payout schedule specified in the Longshore Act. The schedule assigns a certain number of weeks of compensation the injured employee may receive for the compensable loss.
COMPARISON OF RIGHTS UNDER THE JONES ACT AND THE LONGSHOREMEN’S ACT
The significance in the differences of benefits due under the Jones Act and the LHWCA is best illustrated by way of example. Assume, for instance, that a commercial diver, age 30, earning $100,000.00 (or with the potential to earn $100,000.00 or more) per year, loses a leg in connection with a diving accident. Further assume that the injury was attributed to the negligence of his or her employer. In all likelihood, the diver would be medically disqualified from continuing a career as a diver.
Under the Jones Act, the disabled diver would be entitled to a monetary award for the following damages: past, present and future medical expense; pain and suffering, both physical and mental for the loss of the limb; any mental anguish, depression or any other psychological injury; and a dollar-for-dollar loss in earning capacity.
A $100,000.00 per year loss, through the approximately fifteen to twenty years for which the diver would have worked had the injury not occurred, represents a loss, in present dollars, in the $2 million range. Added to this amount would be an award for pain and suffering, both mental and physical, disability, disfigurement, loss of benefits, loss of enjoyment of life, past and future medical care and life care services. Under the Jones Act, therefore, the diver would be entitled to a recovery or settlement significantly in excess of $2 million.
Using the same factual example under the Longshoremen's Act, the same disabled diver would be entitled to medical expenses and the maximum scheduled compensation in the amount of $770 for 312 weeks. Thus, under the Longshore and Harbor Worker’s Compensation Act, the diver would be entitled to a total sum less than $250,000, payable over six years.
The disparity in awards is clear. It should be no surprise that diving contractors and their insurers have vigorously argued before the courts that commercial divers are covered under the Longshore and Harbor Worker’s Compensation Act and not the Jones Act. It is our job to do everything in our power to establish your entitlement to Jones Act benefits.
DEATH BENEFITS UNDER LHWCA
Surviving spouse benefits are paid at a rate of 50% of the average weekly wage either for the lifetime of the spouse or until he or she remarries. If dependent children also survive the employee, additional compensation may be paid to bring the death benefits to two-thirds of the employee’s average weekly wage.
Surviving dependants’ benefits are paid on behalf of one child at a rate of 50% of the average weekly wage. Reasonable funeral expenses up to a maximum of $3,000 may be paid under the Act.
Outer Continental Shelf Lands Act
For those divers or maritime employees who do not qualify as a seaman but suffer injury while working aboard a platform or stationary rig the Outer Continental Shelf Lands Act (OCSLA) may provide a remedy.
OCSLA applies outside 10 nautical miles off the shore of Texas and the Gulf Coast of Florida, and applies 3 land miles off the coast of Louisiana. Land-based tort suits against non-employers for platform injuries are governed by the adjacent state’s law, regardless of the location of the distance of the platform from shore.
OCSLA also incorporates the law of the adjacent state as “surrogate federal law” if it is not inconsistent with maritime law.
OCSLA may be relevant to the diver injured while diving directly from a platform without the assistance or support of a vessel.
Benefits under the act are as provided by the LHWCA discussed earlier. OCSLA also allows state law claims against a third party such as a subcontractor who may have caused or contributed to the injury. Recoverable damages in third party actions are similar to those discussed with regard to the Jones Act.
It is important to note that the statute of limitations in an OCSLA action may be much shorter than the typical General Maritime law 3 year period. In Louisiana, for example, a 1 year statute of limitation may apply.