The Jones Act

THE JONES ACT CLAIMS FOR PERSONAL INJURY

Most professional divers have often heard that if injured that “Jones Act” will protect them. Wiser words have never been given to a professional diver and his or her family. The Jones Act is perhaps the most widely recognized legislation in the area of maritime personal injury. The Jones Act is a federal statute which provides a remedy for benefits to seamen who are injured while employed by a commercial diving contractor. The diver’s protection under the Jones Act extends during all times and at all places where they provide services to their employer, including during their transportation to and from the job site, on the vessel, during the dive and on any land based assignment.

HISTORY AND PURPOSE OF THE JONES ACT

In order to encourage young men to join the maritime workforce and thus expand the American admiralty the United States Congress enacted the Jones Act in 1920; the Jones Act reads in part as follows:
Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury… and in the case of death of any seaman as a result of any such personal injury, the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury… Under the Jones Act, a diver is entitled to recover dollar-for-dollar losses (monetary damages) upon a showing that the injury is attributable to an unseaworthy vessel or negligence on the part of his or her employer its agent or a co-employee.

Negligence is defined the failure to exercise ordinary care under the circumstances. This standard of care is dictated by the widely accepted operational rules found within the commercial diving industry; sources of “industry standards” may be found in the A.D.C.I. Consensus Standards, a company’s operations manual, and, of course, the mandates found in the OSHA and United States Coast Guard regulations applicable to the commercial diving industry.

It is important to note that a diving company, by law, must act in a “reasonably prudent” manner; if it does not, and its negligence causes damages, the diving contractor is responsible for the resulting damages. The right to bring a legal claim for damages, rather than being restricted to only receiving a weekly allowance under a land-based workmen’s compensation law, sets a professional diver apart from land-based workers. With the Jones Act as a foundation, U.S. seamen worldwide are armed with a federally mandated law which protects them as they face “the perils of the sea.” Interpreting this law, admiralty courts throughout the United States have favorably treated seamen as “wards of the admiralty court” and, in doing so, provide them with the security of knowing that their employers are answerable to a jury for injury caused by negligent practices or procedures, or an unseaworthy vessel.

A diver sustaining a serious injury is not always entitled to a substantial monetary award. In reviewing a potential claim under the Jones Act a step-by-step analysis is appropriate.

• Step 1. Is the diver covered under the Jones Act?
• Step 2. Was the diving company negligent in causing the diver’s damages?
• Step 3. Did the company negligence cause the diver’s damages?

SEAMAN STATUS UNDER THE JONES ACT

Historically, admiralty courts deciding Jones Act cases have recognized that the majority of commercial divers are “seamen” under the Jones Act as long as the commercial diver satisfies two essential criteria.

The diver must:
Contribute to the function or mission of a vessel in navigation; and

Be more or less “permanently” attached to the vessel.

Analysis of a diver’s status at times can be very complex. Below is a short summary of the latest guidance on the issue of seaman status from the Admiralty Courts.

CONTRIBUTION TO THE FUNCTION OR MISSION OF A VESSEL IN NAVIGATION

A diver must, through his or her labors, contribute to the function or mission of a vessel in navigation. Professional divers working offshore aboard a dive vessel or a vessel provisioned and manned for commercial diving operations easily fulfill this first requirement. Commercial divers who spend 100% of their time working inland from wharves or structures at power plants or other land- based facilities would probably not qualify as a “seaman”. However many divers divide their time between land and vessel based work. Even the diver injured on a land based job may qualify as a seaman depending on the nature of their other work.

The boat or work platform from which a diver works must be a “vessel in navigation”. The determination is fact specific and in many cases the diver injured working from a barge or platform will qualify as a seaman.

In determining whether a work platform is a vessel, the court looks into the purpose for which the craft was constructed and the business in which it was engaged at the time of the injury. If the vessel was semi-permanent, moored or otherwise secured at the time of the incident, and, in the course of normal operations the transportation function of the craft was merely incidental to its primary purpose as a work platform, the craft may not be a “vessel” covered under the Jones Act.

Most DSV’s (Diver Support Vessels) are covered under the Jones Act. The nature of the industry requires that most diving operations take place from vessels capable of transporting diving personnel, equipment and support systems to the work site offshore and have the mobility to position the vessel over equipment or structures on the seabed.

ATTACHMENT WITH A VESSEL IN NAVIGATION

Secondly, to be covered by the Jones Act, a diver must establish a relationship or attachment with a vessel in navigation. The United States Supreme Court has held that in order to determine an offshore worker’s status for Jones Act purposes, his or her entire maritime work history must be analyzed. This includes the length of relationships with, and the nature of contributions to, vessels. According to the Court’s holding, if a worker spends a “substantial” amount of his time (30% or more) onboard maritime vessels in navigation, that work will most likely be protected under the Jones Act.

For those commercial divers who work primarily for one diving contractor and who have a history of employment aboard an employer owned or chartered vessel or feet of vessels this requirement is easily met. Under that scenario, the diver would be considered a Jones Act seaman.

Freelance divers benefited greatly from this holding because it shifted the focus away from a worker’s connection to a particular vessel or feet of vessels and toward the actual nature of the work being performed offshore. Most freelance divers do not work with just one specific vessel or feet of vessels.

When a freelance diver works sporadically from company to company and from vessels, wharves or stationary platforms, the diver may not, in the eyes of the law, be a Jones Act seaman. In answering calls for opinions on whether a commercial diver is a Jones Act seaman Delise & Hall will carefully review a diver’s entire work history and log book to help determine whether the diver qualifies as a Jones Act seaman.

Oftentimes a company safety representative or insurance claims adjuster will suggest that a diver is covered under a law other than the Jones Act such as the Longshore and Harbor Workers’ Compensation Act. This may, in fact, be in error. When in doubt, apply the above analysis or contact us.

The bottom line is that most commercial divers plying their profession offshore will be covered under the Jones Act. As Jones Act seamen, divers are treated as wards of the Admiralty. Accordingly, commercial divers should not fear, but rather, embrace the law.

Step 2 – Was the company negligent in causing the diver’s injury or death?

COMPLEXITY OF PROOF IN DIVING RELATED INJURIES AND DIVE COMPANY

Negligence under the Jones Act

As mentioned above, a company is legally liable to compensate an injured diver or a deceased diver’s family when it can be proved that the dive company was negligent in causing the diver’s injury or death.

There is often dispute over what is negligence. The responsibility and job of Delise & Hall in representing an injured diver or his/her family is to discover the errors and omissions that lead to the tragedy and to document the cause in a manner appropriate to proof in a court of law.

In a Jones Act trial the court will instruct a jury as to how to determine whether a dive company was negligent; the Court will instruct the jury:

A diving contractor’s actions is negligent upon proof of the performance of some act which a reasonably prudent diving company would not do or the failure to perform some act which a reasonably prudent diving company would perform when prompted by circumstances which regulate the conduct within the commercial diving industry.

As anyone familiar with the commercial diving industry knows, working in the underwater environment is a very complex endeavor. Diving injuries and fatalities in the hyperbaric environment, and the causes of such tragedies, are often subtle in nature, especially involving decompression illness or other barotraumas related injury.

Unlike a broken leg or herniated back disk, diving injuries may not be evident or easily identifiable on an MRI or x-ray. Accordingly, divers maintaining damage from DCI, AGE or barotraumas are encumbered with unique and complicated burdens of proof. It is not difficult to persuade a jury that a motorist who runs a stop sign and causes an accident is negligent. Proving negligence within the context of diving-related incidents may not be as simple.

The attorneys at Delise & Hall have strong diving related backgrounds, access to the world’s top experts and take pride in having a unique understanding of how and why a diving related injury occurred medically and operationally.

IT IS DELISE & HALL’S OPINION THAT IN MOST CASES THE CAUSE OF A DIVER’S INJURY OR DEATH COULD HAVE BEEN AVOIDED HAD PROPER SAFEGUARDS AND PROCEDURES BEEN IN PLACE PRIOR TO THE UNFORTUNATE CONSEQUENCES.

Most cases begin with a review of Delise & Hall’s library of company manuals and medical journals accumulated over 30 years. Under U.S. Coast Guard and OSHA regulations, a dive company must publish and make available to all of its employees its Safe Practices Manual. Additionally, a copy of this manual must be available for review at the work site. All too often this is not done.

The company’s operations manual must contain the rules and regulations by which both an employee and the company are expected to act. The professional diver is fortunate in that the manual details what the company considers proper conduct. What better evidence of improper or negligent conduct is there than a company’s decision to ignore its own manual? Sometimes it is not just what the manual says that is relevant but what it doesn’t. Manuals that fail to address proper procedures for the scope of the work performed may become the basis of liability. It is often times the most damaging evidence in a court of law. It is highly advisable that every working diver secure a copy of the company manual. It may prove invaluable in the future.

Another source for review is the A.D.C.I. Consensus Standards for Commercial Diving and Underwater Operations. Within this publication the A.D.C.I. provides mandates of what is expected of its members.

Lastly, a review of the latest medical rules and regulations concerning hyperbaric injury and “ftness to dive” medical considerations helps in the determination of how and why a diving related injury occurred. Over the years Delise & Hall has handled various types of diving cases. Some are easy, such as an error in decompression discovered clearly on a dive sheet.

Others are very challenging, especially in complex decompression cases.

The following are examples of negligence in the commercial diving industry.

IMPROPER DECOMPRESSION TABLES OR IMPROPER USE OF DECOMPRESSION TABLES

A common mistake is the improper use of decompression tables or the use of a table which by its very nature is inherently unsafe. The issue is, “when is a table unsafe or improperly used?”

Decompression schedules should only be used operationally following scientific research completed by the Navy, government agencies or private research efforts at competent research facilities and subject to peer review within the medical and scientific communities via a Medical Review Board (MRB). The attorneys of Delise & Hall have over the years, both through our legal careers and in our own diving experiences, been involved in the development of tables and understand where to probe for weakness.

Tables conceived in the field or developed in an ad hoc manner may present an unacceptable risk of harm to the unfortunate or unwilling diver who is, in effect, a “guinea pig” for the research being conducted on site. The result of such conduct is predictable – the diver sustains decompression sickness. Equally dangerous is the use of experimental tables in the field. Such is negligence, pure and simple, and should, for the safety of all, be reported to the U.S. Coast Guard, OSHA and/or the U.S. Department of Labor.

Negligent conduct on the part of the company may also result from the improper use of decompression schedules. If a dive is performed outside the operational limits of the table, such as an extreme exposure dive in a non-emergency situation, and a diver sustains a decompression accident, then such action is negligence on the part of the company.

Limits such as ascent rates, operational depth limits, gas mixtures and proper decompression, in and out of the water, are written into a table for a reason: namely, to reduce the risk of decompression illness. To ignore the dictates of the tables or the manual is a blatant disregard for the lives and safety of the divers and is negligence. A professional diver should scrutinize the tables to be used on a dive and discuss with the supervisor the anticipated bottom time and depth, safety and decompression stops, ascent rates and gas mixtures to insure that the dive will not go beyond operational limits. If a dive crew feels that the dive plan, schedule or rotation is unsafe, common sense requires reassessment of the dive plan.

IMPROPER MEDICAL TREATMENT

Once a diver exhibits signs of decompression sickness or air embolism, the on-site supervisor and support team must properly render treatment for the diver with the appropriate prescribed treatment table. The first step, however, is recognizing that the diver is bent. Divers often fail to recognize the symptoms in themselves and it is the responsibility of the dive crew to screen every diver post dive. Even in the case of the most subtle symptoms a diver should be treated. All too often decompression sickness is mistaken for fatigue, dehydration or a cold. The diver isn't properly and promptly treated and suffers long term effects as a result.

Industry practice in this regard includes serial monitoring of neurologic symptoms at appropriate stops during ascent and descent, post dive and while using a treatment table. Proper treatment also requires immediate contact with a shore-side hyperbaric physician to augment or change the treatment tables being followed. Failure to follow such tables and practices may contribute to both the seriousness and the permanence of the diver’s condition. Failure to recognize decompression sickness or other barotraumas and/or properly treat an injured diver constitutes negligence.

IMPROPER PLANNING – FAILURE TO PREPARE/ FOLLOW A JOB SAFETY ANALYSIS (JSA)

This category comprises a whole host of situations. The file cabinets of Delise & Hall are filled with injuries caused by improper job planning or the failure to implement a chosen plan of operations.

Common examples include inappropriate burning leading to explosions, ditch collapses, back injuries due to overexertion, crushing injuries, amputations, loss of breathing gas, uncontrollable ascents, etc. Often the root cause of an accident can be traced back to improper and inadequate job planning.

The A.D.C.I. in its Consensus Standards delineates the use of a Job Safety Analysis (JSA) as a mandated requirement in all operations. The mandate requires a written document which provides the sequence of job steps, an identification of potential hazards, the recommended safe procedures to reduce the hazards and an assignment of responsibility to mitigate the hazard. Should the JSA not be established or if the JSA is not followed and an injury occurs a finding of negligence is appropriate.

UNDER MANNING AND INAPPROPRIATE OPERATIONS

The use of proper equipment and qualified personnel is paramount in the establishment of safety on the work site in commercial diving operations. Most dive company manuals provide for particular job specifications. Failure to adhere to these requirements constitutes negligence. Safe, competent dive companies avoid placing their divers in operational settings which present unreasonable and unacceptable risks of danger. On most dive operations, supervisors or project managers will always have available young divers or dive/tenders who are more than willing to accept the challenge of a job beyond the accepted safety parameters of a safe dive. That is the nature of the business. Placing a diver in such a position is improper and is a violation of the law. In those situations where the diver “accepts the challenge” and is injured, a court of law may conclude that the actions of the company were negligent.

EQUIPMENT FAILURE

Similar to improper job planning we see a lot of cases resulting from equipment failure or improper equipment use. These cases range from the obvious such as chamber fres, malfunctioning compressors, broken whips and falling crane booms to the much more subtle such as improper gas mixture, rack plumbing or valve mistakes, over used scrubber in experimental rebreathers, etc. Sometimes it is easy to identify the faulty equipment. More often it takes someone experienced in commercial diving operations with a thorough understanding of the equipment used to recognize and ferret out the source of an accident.

AN OVERWORKED OR EXHAUSTED CREW

MISTAKES ARE OFTEN CAUSED BY FATIGUE CAUSED BY OVERWORKING A CREW OR LONG HOURS WITHOUT REST.

The commercial diving contractors through the A.D.C.I. appropriately recognize this fact and have established a minimum rest standard in its Consensus Standards.

Employing this standard divers and their support crew are to work no longer than 18 continuous hours. Once the 18 hour time parameter is reached the dive crew must be afforded a minimum of 8 hours away from the dive station and shall not be engaged in “alternate work activity”. And lastly, a worker shall not be required to work over 60 hours over a 96 hour period. The preceding time parameters do not apply to emergency situations. Should a dive crew be pushed beyond the limits and an injury or death occur as a result of exhaustion or fatigue such conduct would be termed negligent.

CAUSATION UNDER THE JONES ACT

Step 3 – Did the company negligence cause the diver’s damages?

“Causation” is the link between the negligent act and th injury suffered. A driver may negligently run a stop sign but if such action doesn’t cause an accident and injury there is no causation.

Not all negligent conduct creates legal responsibility under the Jones Act. In order to recover for damages after establishing negligence, a diver must next prove that the negligence was the direct (proximate) cause of the injury. It matters not that the company was running a shoddy ship or engaging in unsafe practices if those actions were not the cause of the accident and injury.

For example, assume that a rack operator fails to strictly adhere to the proper decompression schedule provided by a decompression table. If the diver in the water does not sustain a decompression injury, yet later fractures a leg through his own folly, the improper decompression was not the proximate cause of the broken leg. In that instance the company would not be held liable because of the negligent actions of the rack operator. The negligent act or omission must cause the injury.

Causation is often difficult to establish and requires an employment of Delise & Hall’s knowledge of diving physiology and contacts with experts in the industry. An example may be a diver who suffers decompression sickness and is later diagnosed with a common heart abnormality known as a PFO. (A more detailed explanation of the “PFO issue is found later in this booklet).

In this real world case the dive company will immediately blame “causation” on the PFO. But what if the supervisor allowed the ascent rate to be exceeded between stops, allowed the diver to step in a hole on the bottom and exceed depth limits, shaved 45 seconds off an in water stop, allowed a stage to drift closer to the surface or missed an O2 session during decompression? Delise & Hall has successfully established causation in each of these instances.

THE LEGAL DEFENSE OF COMPARATIVE FAULT

A legal defense employed by a diving contractor responding to a claim of negligence under the Jones Act arises when the company demonstrates that the accident and subsequent injuries were partially caused by the negligence of the diver. The law provides that a maritime employer must act reasonably in the conduct of diving operations; the same obligation is placed upon the maritime worker. If the diver acts unreasonably and such conduct contributes to his or her own injury, such conduct is defined as contributory negligence.

In such a case, the award for damages will be reduced by the percentage of the diver’s negligent conduct. For example, if the diver is 25% responsible for the accident and injuries, the diver’s award for damages is reduced by 25% and the company would be responsible for 75% of the diver’s damages. It is often Delise & Hall’s role to establish the facts and create the theories necessary to destroy or reduce any argument regarding the diver’s comparative fault.