LHWCA Benefits vs. State Workers’ Compensation Benefits
The dangers associated with maritime employment are well documented. Personnel in this industry are consistently exposed to numerous threats to their physical and mental health, from hypothermia to falling objects. Injuries are hardly uncommon—but, luckily, wounded seamen are not left to their own devices. The law provides various mechanisms through which maritime personnel can obtain compensation for the harm they have sustained in connection with their duties.
Here’s where matters can get confusing. There are a variety of laws on the books that define the types of compensation available to maritime employees, and it’s not always clear whether a statute applies in a particular personal injury case.
One of the more common points of confusion deals with the apparent conflict between the benefits and protections allotted by state worker’s compensation and those provided by the Longshore and Harbor Workers Compensation Act (LHWCA). How can a maritime worker know if they qualify for one or the other? Which is “better”? What is the role of a longshoremen lawyer in all this? Let’s take a closer look at this issue.
The LHWCA: A Brief Overview
The Longshore and Harbor Workers’ Compensation Act (sometimes called the Longshore Act) was signed into law in 1927 to augment the inadequate workplace protections that had been granted to maritime personnel prior to that point in time. The LHWCA offered workers’ compensation benefits to those who become injured while employed on U.S. navigable waters. Since the passage of the Act, it has been modified on multiple occasions over the years, substantially extending its scope of coverage.
Today, the LHWCA is administered by the Division of Longshore and Harbor Workers’ Compensation (DLHWC), which is itself managed by the United States Department of Labor. In 2016, about $1.3 billion in benefits were paid out under the guidelines of the LHWCA.1
Types of Disability Under the LHWCA
When dealing with the LHWCA, not all forms of disability are alike. There are two major factors that must be determined: (1) the duration of the injury or illness, and (2) the scope of the injury or illness.
- Temporary vs. Permanent Disability – According to LHWCA standards, “temporary” disability is one where the individual in question is still in the process of recovery, as certified by a qualified medical professional. A “permanent” disability is one which is not expected to improve further.
- Total vs. Partial Disability – An individual is considered to be suffering from “total” disability when they are completely unable to perform their work duties. “Partial” disability means that the employee cannot perform their usual job but can carry out duties that have been modified or reduced to accommodate their impaired condition.
Benefits Under the LHWCA
Qualified personnel who become injured or sick due to their job responsibilities are classified in one of four categories recognized by the LHWCA, each with a unique compensation scheme hinging on the extent and duration of the employee’s disability. All compensation paid out under the LHWCA is circumscribed by the Minimum (MIN) and Maximum (MAX) rates, which are recalculated on October 1st of each year. These rates are based on the National Average Weekly Wage (NAWW) as determined by the U.S. Department of Labor.
As a general rule, the qualified employee’s disability compensation under the LHWCA must fall between the MIN and MAX limits. One exception to this rule occurs when the employee’s Average Weekly Wage (AWW)—usually based on the previous 52-week period—falls below the MIN rate; in this case, the compensation is paid out at the AWW rate.
The four disability categories recognized by the LHWCA are as follows:
- Temporary Partial Disability (TPD) – If the employee has a partial disability from which they are expected to make a full recovery, then they are entitled to compensation payments calculated at two-thirds of their “loss of earning capacity.”
- Temporary Total Disability (TTD) – If the employee has a total disability from which they are expected to make a full recovery, then they are entitled to compensation payments calculated at two-thirds of their Average Weekly Wage.
- Permanent Total Disability (PTD) – This is paid out at the rate of two-thirds of the employee’s AWW, and continues for the duration of their disability. The rate can be modified based on increases in the NAWW.
- Permanent Partial Disability (PPD) – This classification consists of three subcategories: Scheduled PPD, Unscheduled PDD, and PDD for Retirees.
- Scheduled PDD – If the partial impairment is permanent in nature, then disability payments are calculated according to a detailed schedule that covers a wide range of impairments (e.g., loss of arm, loss of finger, loss of hearing, and so on). Each listed body part is assigned a period of eligible compensation, expressed as a specific number of weeks. The full list of injury types is too extensive to summarize here, but the full schedule is available on the Department of Labor website. These payments are issued in addition to compensation set at two-thirds of the employee’s AWW.
- Unscheduled PDD – Any physical disability that is not mentioned in the official LHWCA list of recognized impairments is classified as “unscheduled.” In these cases, payments are calculated at two-thirds of the individual’s loss of earning capacity. These payments are issued for the duration of the injury or illness.
- PDD for Retirees – If the disability isn’t diagnosed until after the retirement of the individual in question, then payments are calculated according to the standards of the AMA Guides to the Evaluation of Permanent Impairment.
Qualified Individuals Under the LHWCA
It is important to understand that not everyone who could conceivably be termed a maritime employee is eligible for LHWCA compensation. Over the years, the Act has been modified several times to redefine its scope of protection. At the present time, the LHWCA concerns itself with two basic questions when determining who qualifies for benefits:
The Status Test – To qualify for LHWCA benefits, the individual must have been engaged in maritime labor as a substantial part of their job duties. This group usually includes longshoremen and persons in closely related occupations. However, crew members of a ship are not covered by the LHWCA; they’re protected by the Jones Act instead. Aquaculture employees are also excluded.
The Situs Test – This refers to the location where the employee’s job duties were performed (situs means “site” in Latin). According to the LHWCA § 903, the injury must have occurred “upon the navigable waters of the United States,” which can include piers, wharfs, terminals, marine railways, and related areas. Strictly speaking, the employee does not need to have been “upon” the waters to qualify; the courts recognize that a worker who was near or adjacent to navigable waters should receive LHWCA benefits.
Comparisons with State Workers’ Compensation Benefits
Now we arrive at the heart of the matter. Why should an injured maritime employee bother with the LHWCA if they qualify for worker’s compensation? As we have seen, not all maritime employees are covered by the LHWCA—this makes worker’s compensation their only real option (although they may qualify for compensation under another maritime statute).
In many cases, the benefits provided by the LHWCA significantly exceed those available from state worker’s compensation. For example, Temporary Total Disability payments under the LHWCA are set at two-thirds of the employee’s Average Weekly Wage, while state worker compensation is generally lower. That’s why opting for LHWCA benefits—when a choice is possible—tends to be the best strategy.
Additionally, LHWCA payments are usually issued for the duration of the disability (though Temporary Partial Disability is capped at five years), so long as the individual can present medical documentation attesting to their disabled condition. This is often not the case with state worker’s compensation.
Depending on the maritime employee’s state of residence, it may be possible to collect both worker’s compensation and LHWCA payments, but the benefits issued through the latter program will be reduced so that the worker does not receive more than the maximum possible from either program. Some states do not allow maritime employees to collect worker’s compensation at all if they qualify for LHWCA benefits.
Due to the various exceptions and exclusions that govern LHWCA benefits, it’s not always a straightforward matter for an injured maritime worker to determine what they should do to maximize their compensation. Contacting an experienced longshoremen injury attorney like the ones at Schechter, McElwee, Shaffer & Harris, L.L.P., should be the first step in your journey. Feel free to call Maintenance & Cure at (800) 836-5830.
Your Rights as a Longshoreman
If you or a loved one works as a longshoreman, you already know that such workers face risks that simply aren’t present in most other industries. From hand-lifting cargo and operating heavy machinery to working in an environment where weather hazards can be especially severe, life on the docks can hardly be considered easy. Since longshoremen operate under maritime law, it can be confusing to determine what one’s rights are after an accidental injury on the job.
In this article, we’ll talk a bit about who can be considered a longshoreman, what kinds of laws protect these specialized workers, and what your rights are under those laws. We’ll also show you how having the right legal counsel for your injury case can make all the difference.
Who Qualifies as a Longshoreman?
A longshoreman is generally defined as any individual employed to load and unload ships in port. Depending upon the type of cargo a given ship is carrying, a longshoreman might lift crates by hand or use heavy equipment like forklifts and cranes to load and unload assets.
In addition to the moving of cargo, longshoremen may also be tasked with tying shipping containers together (lashing), assisting passengers with luggage on cruise ships, keeping track of manifests, signaling for communications, etc. In essence, teams of longshoremen will do whatever it takes to make sure ships pick up and drop off exactly what they need to while they’re in port.
The Longshore and Harbor Worker’s Compensation Act
The Longshore and Harbor Worker’s Compensation Act (LHWCA) is the section of maritime law that specifically covers the legal rights and compensation benefits of longshoremen. The LHWCA also covers the rights of anyone who works in or around the harbor, including shipbuilders and repairmen who work on the docks rather than on the water. This particular act is meant to bridge the gap between the Jones Act and standard worker’s compensation benefits.
In maritime law, the LHWCA is distinct from the Jones Act, which covers the rights of seamen working on a ship in open water. Under the Jones Act, claims are filed with the appropriate court. Under the Longshore and Harbor Worker’s Compensation Act, claims are filed directly with the U.S. Department of Labor.
Your Rights Under the LHWCA
The Longshore and Harbor Worker’s Compensation Act provides you, as a longshoreman, with a set of valuable legal rights intended to protect you in the case of injury or fatality.
- If you are injured on the job, you are entitled to receive compensation to cover medical bills and at least part of your usual income (maintenance and cure, in maritime law).
- Depending upon the details of the claim, you may also have the right to coverage for physical therapy and/or other rehabilitation services.
- If you’ve been injured on the job due to negligence on the part of someone who was not your employer, you are allowed to file a third-party claim for further damages.
- If, in the worst case scenario, you are killed while working as a longshoreman, your family will be entitled to receive compensation benefits to help support them in your absence.
- In all of these cases, you have the inherent right to hire a trusted local maritime lawyer to assist with your case and help you get the best possible outcome.
When you need to claim benefits under the Longshore and Harbor Worker’s Compensation Act, you have 30 days from the date of injury to notify your employer that you’ve been injured. You must also file your LHWCA claim within a year from the date of your injury in order to receive benefits. Your employer will have 14 days from the date of notice to either begin paying your benefits voluntarily or dispute your claim.
The Benefits of Legal Counsel in an LHWCA Case
As with any other type of claim, the benefits of having a strong legal representative on your side cannot be understated. An experienced local maritime attorney will not only have an intimate knowledge of your rights as outlined by the Longshore and Harbor Worker’s Compensation Act, but will also know exactly how to get you the compensation you deserve for your injuries.
A good maritime law attorney will be able to help you with various aspects of your case, such as the following:
- Filling out your claim (what information to include, etc.)
- Filing your claim with the U.S. Department of Labor
- Determining what benefits you may be eligible to receive and how much coverage you’ll require
- Representing you and fighting for the coverage you deserve, should you be offered less than you need
- Managing and reducing stress and paperwork related to your case
Whether you need basic coverage for medical expenses incurred during treatment for a broken bone or require long-term disability benefits for a serious, life-changing injury that threatens the financial security of your family, a knowledgeable maritime attorney will be able to help you navigate your case and fight on your behalf to get the money you need to pay your bills and support your family.
Need Someone to Defend Your Rights? Our Local Maritime Attorneys Are Experts in Maritime Law
As a BBB accredited business and a leader in maritime law, Schechter, McElwee, Shaffer & Harris, LLP has helped hundreds of injured seamen, longshoremen, and other maritime workers seek the compensation they deserve after being injured in an accident. Our expertise and success in maritime law cases have led to features by respected media outlets like Bloomberg, CNN, MSNBC, Newsweek, and others.
We’ve recovered hundreds of millions of dollars for our clients, in a variety of cases, including those involving employer neglect, safety failures, PTSD, hearing loss, and more. We’re not afraid to go up against big names, as we’ve sued multi-million dollar companies like BP, Phillips 66, and Transocean.
If you are a Texas maritime worker who is covered by the Longshore and Harbor Worker’s Compensation Act and you’ve been injured in a workplace accident, it’s time to get an experienced attorney on your side. To learn more about what we can do for you or ask any questions you may have about your rights, call (888) 297-4553 at any time day or night to schedule your completely free case evaluation with one of our local maritime lawyers.
Compensation Benefits Under Maritime Laws
When a worker is injured on the job, typically there are specialized benefits available to assist them: employer-provided worker’s compensation, disability, etc. Naturally, these benefits fall under the jurisdiction of the usual state and federal laws.
What happens, however, when an individual is injured while working on open water? In this article, we’ll discuss the concept of maritime law; the types of compensation benefits it can provide to seamen, longshoremen, and other maritime employees; and the benefits of retaining a local maritime attorney.
What Is Maritime Law?
In general, maritime law is the body of legal rules and regulations governing the activities that occur at sea. Activities that may be covered under maritime law include shipping of cargo, transport of passengers, fishing, and more. In the United States, federal maritime law allows maritime workers/seamen to file suits and claims for compensation should they be injured on the job while performing maritime work duties.
Also sometimes called “admiralty law,” maritime law is an entirely separate legal jurisdiction from the usual federal body of law. Because it technically operates outside of national law, the maritime laws of all member states are held to the standards of the International Maritime Organization (171 members in all). The United States, of course, is one of these member states.
This international set of rules ensures the maintenance and regulation of appropriate and fair maritime laws worldwide. Ships must also carry appropriate IMO certification aboard at all times, and local governments are expected to enforce the relevant standards at all times.
Compensation Benefits Under Maritime Law: an Overview
Because maritime law was written specifically to address the legal rights of deckhands, fishermen, seamen, and others working on the water, the rules had to be carefully crafted to meet the varied, sometimes unusual, needs of this unique workforce.
Maritime injuries can occur in situations that an employee would never experience on land, like being made to work on an unseaworthy vessel. As such, the umbrella of maritime law contains a variety of other laws, acts, and regulations that seek to protect the rights of those laboring every day on navigable waters.
There are a variety of areas of U.S. maritime law, including Maintenance and Cure, The Jones Act, the Longshore and Harbor Workers’ Compensation Act (LHWCA), the Death on High Seas Act (DOHSA), and Passenger Personal Injury. The types of damages an injured worker can rightfully claim vary based on under which portion of the law a given incident falls.
The following are examples demonstrating which types of incidents might fall under which sections of maritime law:
• Maintenance and Cure
Nearly any kind of injury at sea—regardless of cause or fault—entitles a worker to compensation benefits under Maintenance and Cure. This section of maritime law is so-named because it relates to maintaining daily expenses and paying for any medical expenses needed to treat the related injury.
Examples of covered expenses under Maintenance and Cure include rent/mortgage payments, utility bills, taxes, food, hospital stays, doctor appointments, relevant medications, physical therapy, medical equipment, etc. This compensation will continue to be paid to an injured worker until such time as his or her doctor determines that it is safe to return to work.
• The Jones Act
This particular act exists to protect maritime workers who have specifically been injured as a result of negligence (generally on the part of another worker or the employer). Because this law hinges on employer liability, the injured party does have the burden of proof and must provide evidence that their injury happened at work and is the result of someone else’s negligence.
Fortunately for the injured individual, the burden of proof for negligence is generally easier to meet under maritime law than it might be in another kind of personal injury case. The Jones Act requires only that the employee is able to show that employer negligence was involved in some way in his or her injury (e.g., improper equipment maintenance, poorly cleaned decks, improper training, overworking, etc.).
• The Longshore and Harbor Workers’ Compensation Act (LHWCA)
By comparison to other areas of maritime law which deal only with those working on open water, the LHWCA covers all maritime workers working on or around navigable waters. This includes longshoremen, mechanics, and harbor workers who deal with vessels at the shore but may not work directly on the water.
The LHWCA stipulates that an injured worker may receive 66 2/3 percent of normal wages while they heal, and may be compensated further for especially serious injuries and/or disabilities (e.g., loss of limbs, paralysis, etc.). Should a maritime worker be killed on the job, the act states that his or her surviving spouse is entitled to 50% of average pay.
• The Death on High Seas Act (DOHSA)
As its name implies, DOHSA compensates the families of those who are killed on the job when working more than three miles from a U.S. shoreline (considered “high seas” for legal purposes). Claims for benefits under the Death on High Seas Act may only be filed by a spouse, child, or dependent (or a legal representative of any of these).
Compensation under DOHSA is calculated on a case-by-case basis, and generally includes the amount of income the individual would have provided to his or her family, as well as some consideration for the care that any dependent children will no longer receive from their deceased parent. Surviving family members who are entitled to compensation under this act have three years from the date of the individual’s death to file a claim for these benefits.
Of course, employee injury is not the only type of case that can be covered under maritime law; issues of property damage and passenger injury (such as on a cruise ship) can also fall under this special legal jurisdiction.
Under U.S. law, the majority of personal injury, collision, cargo damage, and other maritime cases can be brought in either state or federal court. However, cases involving shipowner liability, property/vessel arrests, salvage, and other property possession issues can typically only be brought in a federal court.
Trust an Expert Local Maritime Lawyer to Help You Seek Compensation as a Maritime Worker
If you or a loved one have been injured while working at sea or on the docks, you may be entitled to compensation benefits under maritime law. At Schechter, McElwee, Shaffer & Harris, L.L.P., our local maritime lawyers devote their legal expertise to helping injured maritime employees seek the damages they deserve. Leveraging decades of combined experience working in maritime law, we’ve helped clients just like you recover hundreds of thousands of dollars in damages as a result of maritime injuries.
To learn more about maritime law and how our local maritime attorneys can help you claim the benefits you deserve, contact us online or call us 24/7 at (888) 297-4553. We’ll help you set up a free, confidential case evaluation with one of our experienced Maintenance and Cure attorneys to discuss your situation and needs.
Can Longshoremen Claim Psychological Injuries?
Longshoremen provide valuable services by ensuring goods are transported into and out of our nation’s ports. Working on the docks and around vessels has its own risks for accidents and personal injuries. There are several different types of moving equipment, such as forklifts, cranes, and trucks.
Common causes of port injuries and accidents could include:
- Falls from great heights or into the water.
- Being run over by a truck, forklift, or another moving vehicle.
- Having cargo, containers, or other objects accidentally dropped onto a person.
- Slips and trips on uneven pavement, cables, ropes, or a wet and oily surface.
- Exposure to hazardous materials and chemicals.
- Improperly functioning or maintained equipment.
When an accident does occur, longshoremen are protected under the Longshore and Harbor Worker’s Compensation Act (LHWCA). This Act provides specific provisions above and beyond normal state worker’s compensation claims.
While we typically associate personal injuries to those that do actual physical harm, like broken bones, sprains, strains, cuts, deep wounds, or death, we often do not consider the psychologic impacts and injures a person could also sustain. In some cases, a longshoreman could experience psychological injuries even if they are not physically injured.
Two of the more common types of psychological injuries a longshoreman may experience are post-traumatic stress disorder (PTSD) or mental anguish. PTSD can occur in workers that see or experience a horrific accident, like seeing a co-worker fall from an elevated height to their death. Mental anguish is when an injured worker is having difficulties dealing with their injuries since they can no longer work and provide for their family.
Fortunately, The LHWCA is written in such a manner to provide compensation for any type of injury, whether physical or psychological. However, most employers will challenge claims filed for psychological reasons unless the worker was also physically injured at the same time or was placed in imminent danger of harm.
This is why, if you are injured, physically or psychologically, it is in your best interests to consult with a local maritime lawyer, like those here at Maintenance and Cure. Call us at 1-800-836-5830 now to find out your legal rights!
10 Facts About Oil Rig Accidents That Will Give You Goosebumps
Working offshore on oil rigs and platforms presents increased risks for workplace injuries and even deaths. As the oil industry continues to expand its drilling operations and hire new employees, so, too, do the risks for accidents increase.
Workplace accidents can take on many different forms, such as fires, explosions, drilling equipment problems, and so on. The types of accidents workers experience can range from minor cuts, scrapes, and bruises to more serious life-crippling injuries and death.
We invite you to read and review the following infographic to discover 10 facts about oil rig accidents, along with some hard facts and numbers that will surprise you.
Afterward, if you or a loved one has been injured while in the service on an oil rig, platform, or vessel, please feel free to contact Maintenance and Cure directly to learn more about your legal rights and what options you have available under maritime law.
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Most Offshore Oil Rig Fires and Gas Explosions Are Preventable
Two of the biggest threats to oil rig workers are fires and gas explosions. Fires and gas explosions have occurred for a number of different reasons, including equipment malfunction, poor or incomplete maintenance, lack of employee training, negligence by the employer, and blowouts.
Stats and Facts About Past Explosions
In more recent years, the state-owned Mexican oil company, Pemex, has had ongoing accidents, fires, and explosions.
- April 2016 – Explosion at Pemex’s Pajaritos petrochemical complex with 136 injuries and at least 13 deaths.1
- April 2015 – Pemex’s Abkatun Permanente platform exploded and caught on fire. There were 16 people injured, 4 deaths, and 3 people who went missing after workers jumped into the ocean and are presumed dead.2
- April 2015 – Two weeks after the explosion, Pemex was responsible for an oil spill from its pipeline after oil thieves damaged the pipeline. This accident resulted in oil flowing into three rivers near Villahermosa.2
- May 2015 – A Pemex oil rig in the Bay of Campeche collapsed into the ocean, resulting in 2 deaths and at least 10 injuries.2
- 2013 – 37 people died in an explosion at Pemex’s Mexico City headquarters.1
- 2012 – 26 people died in a fire at one of Pemex’s natural gas facilities.1
Part of the problem with Pemex is, because they are a state-owned operation, there has been very little accountability by the Mexican government. In all of the accidents, it appears that improper maintenance, upkeep, and other substandard practices were contributing factors.
Here in the United States, one of our nation’s worst oil rig disasters was the Deepwater Horizon incident that occurred in April 2010. The explosion of the oil platform occurred when a blowout preventer device failed to automatically seal the well. Eleven people lost their lives from the explosion. The oil leak was the biggest oil spill in the United States on record.3
Upon review of the cause of the Deepwater Horizon explosion, it was determined the accident could have been prevented. Had BP enforced a more functional safety culture, then, in all likelihood, the explosion could have been avoided.
The worst oil rig disaster in history is still the Piper Alpha disaster, which occurred in the North Sea in the United Kingdom in July 1988. During the explosion and resulting fire, of the 226 workers stationed on the rig, 167 died.4
The cause of the disaster was due to maintenance not being completed on a condensate-injection pump. The day crew failed to inform the evening crew the work was still not done. Due to this communication error, the pump was turned on, resulting in a major gas leak that caused numerous explosions on the oil rig.
Most of the oil rig explosions and fires over the past three decades were preventable with improved safety measures, better maintenance practices, and effective communications between employees.
If you or a loved one has been injured or were killed in an oil rig fire or explosion, please feel free to contact Maintenance and Cure at 1-800-836-5830 today. Our maritime accident attorneys have helped clients and families settle cases, including one of the largest, if not the largest, settlements under the Jones Act, for close to $18 million.
What is DOHSA?
Anyone who has arrived on this website probably knows already that maritime employment is extremely hazardous. Offshore and maritime personnel are routinely exposed to a shockingly wide array of physical perils, ranging from harsh weather to employer negligence and, as a result, serious injury is far from uncommon in this line of work.
That’s why injured seamen have been provided by law with a number of remedies, such as the Jones Act, that enables them to obtain due compensation for the harm they experience in connection with their employment.
Tragically, some maritime accidents result in fatal injuries. In these cases, the focus of the law shifts to compensating the family of the deceased. The Jones Act provides a mechanism where family members can seek compensation for the death of a loved one killed while fulfilling their obligations as a maritime employee—but only if the incident occurred within U.S. territorial waters. What happens when such as incident happens out on the “high seas”—that is, in international waters? Fortunately, legal help is still available under these circumstances.
One of the most important laws on the books for helping bereaved family members obtain such recompense is the Death On the High Seas Act (DOHSA). What follows is a brief overview of DOHSA and its place in maritime law.
How DOHSA Came into Being
There was a time when offshore employees and other persons harmed in maritime accidents had relatively little recourse when it came to pursuing justice in the courts. That began to change in the first decades of the 20th-century when a number of laws were passed to bolster the rights of persons seriously wounded through the negligence of another party while out at sea.
The Merchant Marine Act of 1920 (commonly known as the Jones Act) is one such law; this legislation helps injured sailors make claims against a negligent employer. The Death on the High Seas Act—also enacted in 1920—is another such law.
The intent of DOHSA is to provide surviving family members with the legal tools to recover damages against a maritime employer responsible for the death of the seaman in question. DOHSA (46 U.S.C. app. §§ 761–768) officially became a federal statute when it was signed by President Wilson on March 30, 1920, and it has been enforced continually, with a few modifications, down to the present day.
The Scope of DOHSA
The Death On the High Seas Act applies to fatal incidents at sea occurring more than three nautical miles from U.S. waters (including territories). There is a valid cause of action under DOHSA if the seaman died due to an unseaworthy vessel or through other provable negligence on the part of the shipowner. The vessel in question must have been engaged in what could be recognized as a maritime activity. In addition to maritime employees, DOHSA also covers civilian passengers of a maritime vessel.
Incidentally, DOHSA also applies to personnel and passengers aboard commercial aircraft that crash in international waters (defined in these cases as more than twelve nautical miles from any U.S territory).
Some confusion persists regarding DOHSA’s applicability to accidents where the death of the seaman or passenger occurs after a significant passage of time following the precipitating accident.
Let’s consider a hypothetical situation: A seaman is severely harmed by an explosion on a maritime vessel on the high seas, then conveyed to a hospital on the mainland U.S., where he dies weeks later. What does DOHSA have to say? In a situation like this, DOHSA still applies. That’s because the courts have ruled that the determining factor is the site where the accident occurred, not the place of death.
DOHSA can even apply when the accident occurs outside the high seas. The courts have ruled that maritime incidents of this nature fall under DOHSA’s area of coverage so long as they occur outside the three-nautical-mile boundary. That means a maritime accident that takes place within another nation’s territorial waters still qualifies as a DOHSA case, so long it happens at sea more than three nautical miles from any U.S.-controlled territory.
Types of Compensation
Under DOHSA, the plaintiff in a wrongful death suit is entitled to recover damages based on “pecuniary loss“—that is, loss of income and support. They are generally not eligible to obtain recompense for pain and suffering or other non-economic factors. The idea is to compensate families for the loss of a member who could provide financial and domestic sustenance. This compensation typically takes into consideration funeral expenses and loss of future monetary support.
Who Qualifies for DOHSA Compensation?
Because DOHSA is primarily intended to compensate families for a loss of a parent, spouse, and/or caregiver, the law strictly defines who is entitled to recover damages in these cases.
Only these individuals are entitled to compensation under DOHSA:
• The spouse of the decedent
• The children of the decedent
• The parents of the decedent
• Other dependent relatives of the decedent
If the plaintiffs are successful in their DOHSA case, the court will determine the amount of compensation to which each family member is entitled, according to the degree of pecuniary loss they have sustained.
What Must Be Proven
To prevail in the DOHSA case, the plaintiff must be able to demonstrate to the court one of the two following conditions:
- The vessel in question was not seaworthy—that is, it suffered from significant mechanical defects or was otherwise incapable of contending with the perils that such vessels can be reasonably expected to encounter while at sea.
Also, a shipping vessel that has been overloaded may be ruled to be unseaworthy. Other unseaworthy conditions can include an absence of safety equipment and an inadequate number of personnel on board. Please note that the presence of merely minor defects in the ship is unlikely to lead to a ruling of unseaworthiness.
- The owner of the vessel behaved negligently in connection with their responsibilities as a shipowner. Failure to provide personnel with adequate training and failure to abide by proper safety protocols are among the valid causes of action for a negligence claim.
The Issue of Contributory Negligence
Like many maritime statues that govern personal injury matters, these cases hinge on the issue of contributory negligence. In other words, does the deceased party bear partial responsibility for the accident? If so, does this affect the amount of pecuniary damages that may be recovered? Under DOHSA, families can recover damages even if it is shown that the decedent’s negligence contributed to the fatal incident. However, it is also true that the amount of the awarded damages may be reduced in proportion to the negligent actions (or inactions) of the decedent.
Statute of Limitations
For family members of a deceased seaman, it is imperative to act quickly when filing a DOHSA case. The law gives plaintiffs only three years to file a suit, and the clock starts ticking on the day when the incident in question occurred.
Under the Death On the High Seas Act, claims can be brought before the court only by a personal representative of the family members who seek to obtain recompense for the death of the decedent. That’s one reason why is it essential for persons with a DOHSA-qualified case to waste no time in hiring the services of an experienced maritime personal injury attorney who understands the ins and outs of this potentially confusing law.
We will fight for you in the courts and help you obtain the settlement that you justly deserve. Please contact us at 1-800-836-5830 and ask for a free case evaluation. Calls are answered 24/7.
Compensation Benefits: Vocational Rehabilitation Services
What are maritime injuries? A maritime employee is defined as any individual who works either on the water (a seaman, such as a ship’s captain or crew member) or along the water on the docks. When a seaman or harbor worker is injured on the job, it is considered a maritime injury.
Compensation Benefits for Maritime Employees
Unlike other industries where injured workers can simply file for benefits through their employer’s worker’s compensation insurance, benefits given to maritime employees are governed by federal maritime laws, including the Jones Act, Maintenance and Cure, and the Longshore Act.¹
Under the Jones Act, a seaman who was injured due to employer negligence can sue for appropriate damages.¹ Maintenance and Cure allows injured seamen to receive a daily allowance as well as compensation for medical bills. This compensation continues until such time that the worker is able to return to work.²
The Longshore Act applies to those maritime workers who are not seamen and do not work on the water. Benefits can include payments for disability and/or medical bills. If he or she is unable to return to work, the disabled worker is also offered vocational rehabilitation benefits. ³
Vocational Rehabilitation Services
When a maritime worker is injured significantly—particularly when one is rendered disabled for quite some time—he or she may require specialized vocational rehabilitation services to return to work. These services can include medical treatment, physical therapy, counseling, and even the provision of a personal assistant to help the worker perform daily tasks during the rehabilitation period.4
Seek the Help of a Professional Maritime Accident Lawyer from Maintenance and Cure
Whether you need vocational rehabilitation due to temporary disability or would like to seek damages for an accident caused by an unsafe workplace, it’s important to have the support and guidance of an experienced maritime lawyer.
At Maintenance and Cure, we strive to help all of our clients get the compensation benefits they deserve so that they can recover fully without struggling financially. To learn more about how we can help you with your personal maritime injury case, contact us online or call us today at 1-800-836-5830.
The 1920 Merchant Marine Act and Injured Workers
In 1920 Congress passed the Merchant Marine Act. This act has become to be known today as the Jones Act. The act contains federal laws which govern the maritime industry, including work-related injuries for those in the service of a vessel.
Unlike normal worker’s compensation and protections, negligent accident compensation under the Jones Act is typically higher and offers other added benefits for injured seamen. In addition, the statute of limitations to file a claim at either the state or federal level is three years.
Seamen have several rights under the Jones Act. It is to your benefit to be aware of these rights and what you should do in the event you are injured while in the service of a vessel. To learn more about seamen’s rights, employer responsibilities, and types of vessels the Jones Act covers, please continue reviewing the following infographic.
If you have or a loved one has been injured while in the service of a vessel, contact the maritime and Jones Act lawyers at Schechter, McElwee, Shaffer & Harris, L.L.P. for legal advice.
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What Is the Maritime Administration (MARAD)?
It’s certainly not a radical statement to say that the maritime sector in the United States plays an essential role in the maintenance of the nation’s economy and its military force. Corporations rely on the maritime transportation system to deliver goods safely and efficiently across the country and to foreign lands. In addition, the merchant marine serves the dual role of promoting maritime commerce and providing auxiliary support to national defense and emergency response efforts.
Given the centrality of the maritime sector, it makes sense that its various activities and responsibilities would be coordinated by a federal agency. This is where the Maritime Administration (MARAD) comes into the picture.
MARAD is one of the agencies controlled by the U.S. Department of Transportation (others include the Federal Aviation Administration and the Federal Highway Administration), and throughout its history, it has proven to be highly effective in overseeing the waterborne transportation sector. For maritime employees, understanding what MARAD does is important, as this organization touches on a wide range of matters relevant to this industry.
A Brief History of the Maritime Administration
The United States Maritime Administration was formed in 1950 in order to take over many of the regulatory responsibilities that had been handled by the recently dissolved United States Maritime Commission, which had been founded in 1936.
In 1961, MARAD expanded its scope of duties by assuming control of subsidization of the construction of merchant ships, a task that had previously been managed by the United States Federal Maritime Board (1950-1961). MARAD became an official administration of the U.S. Department of Transportation (DOT) in 1981, and it has remained under the oversight of this federal cabinet department ever since.
The Maritime Administrator
The head of MARAD is known as the Maritime Administrator. The occupant of this office reports to the Secretary of Transportation and advises them on matters pertaining to the U.S. maritime industry. Additionally, the Maritime Administrator serves as Commandant of the United States Maritime Service, the Chairperson of the Maritime Subsidy Board, and Director of the National Shipping Authority.
At the present time, the position of Maritime Administrator is held by Rear Admiral Mark H. “Buz” Buzby, USN, Ret., formerly president of the National Defense Transportation Association, who was officially sworn in on August 8, 2017.
The Role(s) of the Maritime Administration
In 2017, MARAD commanded an operating budget of $399 million and employed more than 750 personnel, who were spread among MARAD headquarters, the U.S. Merchant Marine Academy, and various fleet sites and gateway offices.1 These dedicated professionals are involved with supporting and managing many different facets of the maritime sector in America.
Let’s explore the some of the activities in which MARAD is engaged as part of its mission to promote the U.S. waterborne transportation sector.
- Cargo Regulation – MARAD has the task of overseeing the transportation of the nation’s military and agricultural cargo in accordance with all applicable laws and statutes. Among these laws are the Cargo Preference Act of 1954, which mandates that at least 50% of cargo generated by the government be carried on privately owned commercial vessels that fly the U.S. flag, and the Military Cargo Preference Act of 1904, which requires all water-transported items intended for military use to be carried by vessels that fly the U.S. flag. To address the need for the ready availability of U.S.-flag, Jones Act-qualified ships, MARAD routinely assists public entities in their efforts to locate such vessels.
- The Office of Maritime Security – Another MARAD department, the Office of Maritime Security is involved with various efforts to protect the maritime industry from pirates, terrorists, and other criminal threats. MARAD has aided the Department of Homeland Security (DHS) and the Coast Guard in their attempts to combat piracy on the high seas in line with the United Nations Convention on the Law of the Sea (UNCLOS). Furthermore, the Office is involved with efforts to enforce the National Maritime Domain Awareness Plan (2013), intended to bolster maritime security on the global level, and provides support to the DHS in allocating port security grants to entities at the local and state levels.
- Office of Safety – This MARAD department is involved with developing safety standards for the national and international maritime industry, as well as promoting advances in practices and technology to protect the welfare of maritime personnel.
- Port Conveyance and Port Licensing Programs – MARAD helps federal agencies and departments comply with the Federal Property and Administrative Services Act of 1949, which compels such entities to transfer unneeded property to other agencies that need it. Since the 90s, the Administration has also had the authority to convey this property to state and local governments for the development of port facilities. In addition, MARAD licenses offshore liquefied natural gas and oil import/export port facilities in accordance with the Deepwater Port Act of 1974.
- National Defense Reserve Fleet (NDRF) – MARAD manages this small fleet of inactive ships for the purpose of providing auxiliary support, as needed, for national emergency response efforts. As of July 31, 2014, the NDRF consisted of 114 ships.2
- Ready Reserve Force (RRF) – Since 1976, MARAD’s Ready Reserve Force has served a backup support for the U.S. armed forces, especially the Army and Marine Corps. The RRF has been involved in Operation Desert Storm and the Hurricane Katrina response effort.
- Ship Disposal and Dismantling – MARAD runs a Ship Disposal Program to enable the agency to safely dispose of old vessels that are no longer adequate for national security purposes. The agencies achieve this goal through sales to domestic ship recyclers, participation in the U.S. Navy’s SINKEX “live fire” training exercises, and providing vessels for use as artificial offshore reefs.
- Federal Ship Financing Program (Title XI) – The agency takes part in Title XI financing, which is intended to bolster the U.S. merchant marine by funding the construction (or reconstruction) of vessels in compliance with environmentally friendly policies. The Program gives ship owners the opportunity to purchase vessels at affordable rates (low interest and long repayment terms) from U.S. shipyards. It also provides financial support to shipyards seeking to modernize their facilities.
- The United States Merchant Marine Academy – MARAD is responsible for administrating the U.S. Merchant Marine Academy (USMMA), in Kings Point, NY. This is one of the five military academies charged with the task of producing commissioned officers for the various armed forces. Graduates of the Academy go on to serve in the merchant marine or in the U.S. military. MARAD also provides funding to California Maritime Academy, Great Lakes Maritime Academy, Maine Maritime Academy, Massachusetts Maritime Academy, the State University of New York Maritime College, and Texas A&M Maritime Academy.
- The MARAD History Program – The Maritime Administration is also involved in preserving its own history, as well as that of the U.S. maritime industry as a whole. To that end, it operates the American Merchant Marine Museum and, through the Maritime Administration Artifact Loan Program, lends valuable historical artifacts to non-profit organizations and other public museums. It also maintains the MARAD Vessel History Database, which has data on over 12,000 vessels, past and present.
Given its role in enforcing the provisions of the Jones Act, battling piracy on the high seas, and promoting safety in shipbuilding and maritime employment conditions, the Maritime Administration is a name that sometimes arises in connection with offshore personal injury cases.
If you have or a loved one has been seriously injured while performing duties as a maritime or offshore employee, you should contact the maritime law firm Maintenance & Cure at 1-800-836-5830. A free consultation is available.