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.
U.S.S. Fitzgerald Sailors Awoke to a Disaster at Sea
The United States Navy destroyer Fitzgerald departed early on a Saturday morning from the American base at Yokosuka, Japan. It was still dark, but the weather was clear. Only a handful of the 350 sailors would have been awake. The crew had mere minutes to prepare for the collision on the starboard side which killed 7 crew members. 116 members of the crew were still asleep when the collision happened.
Each year, maritime accident lawyers review cases just like this one to shed light on complex, confusing events. Let’s take a look at the details of this case and how maritime law fits in.
It’s still unclear what went wrong, and multiple investigations are still under way. Anyone’s best guess is that whoever was on duty saw the unexpected lights of a cargo ship, the ACX Crystal from the Philippines, and attempted to steer away from it. The collision caused significant damage to areas above and below the water line. A concave area formed that extended one-third of the way across the ship.
The crew showed tremendous effort to keep the Fitzgerald from sinking before tugboats arrived. They towed the destroyer back to Yokosuka before divers explored the submerged compartments. They found the bodies of all seven victims and released their identities.
Determining What Went Wrong
Maritime laws are complex and, often, the investigation into a maritime accident can make or break a case. Because incidents are so rare, there’s very little history to go on. Most veteran sailors with decades of experience can count on one hand the number of incidents with which they’ve ever been involved.
In the case of this incident, something went wrong, but it’s exceptionally difficult to determine exactly what that something was. Nevertheless, very few incidents are ever true accidents—and that means someone must be held accountable.
Bryce Benson, the ship’s commander, received injuries in the collision but will make a full recovery. Navy ship commanders have ultimate authority and responsibility for their vessel, and that often means they, or the Navy as a whole, are held responsible when accidents occur. Commanders are accountable for everything that happens on their ship, even if it wasn’t their fault, and that includes Benson.
Benson would have updated the standing orders before standing down for the night. This is regular practice on all Navy ships, and these orders almost always mandate the night watch to alert the captain of unusual activity. Some standing orders require notifying the commander if the ship’s closest point of approach is less than 5,000 yards.
Whether Benson recorded the events or not, investigators are currently attempting to identify if true fault under maritime law exists. In the process, they’ll assess competency, protocol, timelines, and radar records, and interview each person aboard. If any sailor, or the commander himself, failed to follow protocol or operated the ship unsafely, he or she may be held responsible monetarily or legally.
If you’ve been injured in a ship accident, either while in the Navy or while on another boating vessel, Maintenance & Cure wants to help. Contact us today for a consultation on your options, either for defense or for seeking contribution when it matters most. From the Jones Act to international waters, we understand how to best help you achieve your goals through Maintenance & Cure.
Getting Familiar with the Jones Act
Under the Jones Act, injured maritime workers have the right to compensation. That wasn’t always true.
Once upon a time, if a maritime worker suffered an accident on the job and sustained an injury, they were out of luck. The law provided no means of redress, even if their employer proved negligent.
Over the past century, maritime workers have secured hard-earned legal rights. Now the Jones Act shields them from employer negligence, unsafe working conditions, and accidental injury.
In addition to safeguarding workers, the Jones Act also establishes protectionist measures that help keep U.S. waterways safe and the U.S. shipping industry afloat.
If you work on a U.S. vessel that navigates U.S. waters, it’s important to familiarize yourself with the history and provisions of the Jones Act. Whether or not you’ve been injured in a workplace accident, you should know a bit about the law that governs the American maritime industry.
Take a look at our infographic to learn more.
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The Severity of Maritime Piracy Crimes
Pirates—those much-romanticized scourges of centuries past—are still very much with us today, as viewers of the nightly news can attest. The unlawful activities of modern-day pirates on the high seas have achieved notoriety around the globe.
Even so, piracy is still a shadowy subject for most people, and understandably so. Few of us, even in the maritime industry, have first-hand experience with pirates. Piracy is, however, a serious problem that has far-reaching effects on the international stage.
A Worldwide Phenomenon
The general public has come to associate modern-day piracy with activities occurring off the coast of Somalia, specifically in the Arabian Sea (particularly the Gulf of Aden) and the Indian Ocean. These goings-on can be traced to the deleterious societal effects of the ongoing Somali Civil War, which have made maritime piracy an attractive alternative to poverty. Piracy in these seas diminished significantly over the last decade or so, but, in early 2017, a burst of renewed pirate activity made it clear that this problem hasn’t gone away quite yet.
Piracy is not limited to this region, however. Nor is Somalia the only nation that harbors pirates. Another hotspot for criminal activity is the South China Sea, where pirates from Malaysia and Indonesia often harass maritime vessels. In addition, the Gulf of Guinea, in the eastern Atlantic Ocean, has seen dozens of incidents in recent years.
How It Happens
Pirates use a variety of tactics to capture and board unsuspecting maritime vessels. Sometimes they use high-speed engines to quickly catch up to vessels, often approaching from a blind spot, before defensive action can be taken. Another tactic is to pose as a friendly vessel in order to gain the trust of the crew on the targeted ship.
Once aboard, pirates frequently seize hostages, demanding a sizable payout for their release. Alternatively, they may simply raid the vessel for its cargo.
The Cost of Piracy
Wherever it occurs, maritime piracy enacts a steep cost. According to the non-profit group Oceans Beyond Piracy, Somali pirates caused $1.7 billion in financial losses in 2016. If that sounds steep, consider that this figure represents a dramatic drop from $7 billion in the year 2010. In West Africa, piracy accounted for nearly $800 million in losses (2016).1
In addition to incurring heavy losses in ransom money and lost goods, the actions of pirates force local governments to devote a substantial amount of resources to counter-piracy measures, such as providing military escorts to cargo ships.
The United Nations Convention on the Law of the Sea (UNCLOS) of 1982 is the primary piece of international legislation covering piracy.
In recent years, the U.S. has assumed a more central role in the prosecution of captured pirates, often imposing harsh sentences up to life in prison. Schechter, McElwee, Shaffer & Harris, L.L.P., has helped a number of piracy victims obtain suitable compensation under the guidelines of the Jones Act. If you have been harmed during the course of a pirate assault, you should contact our office as soon as possible for a free consultation.
A Maritime Worker’s Rights and the LHWCA
The LHWCA (Longshore and Harbor Workers’ Compensation Act) is the lifeline of many maritime workers injured on the job. Most injured individuals will find they fit the LHWCA requirements, although qualifications for coverage are strict. The protections and policy ins-and-outs of the act mean the injured worker needs to do a little digging to get the information. However, the longshoremen lawyers at Schechter, McElwee, Shaffer, & Harris, L.L.P., know where to look. To save you time, we’ve assembled a complete breakdown of the LHWCA and how it affects you.
How Does the LHWCA Work?
The LHWCA is a federal law and as such it provides protection for employees injured and permanently or temporarily disabled as a result. To qualify, the injury must have happened in specific occupations and locations defined in the LHWCA. The protections extended to the injured employee include medical treatment and compensation of a percentage of regular pay. There is even compensation for job retraining—or vocational rehabilitation—should the resulting disability preclude the individual from returning to his or her original occupation. For those killed on the job, a death benefit is available to the spouse or other specified beneficiaries. To get these protections, the injury must occur on navigable waters or in locations adjacent to these waters. Adjacent locations would include docks, loading and unloading, shipbuilding, and ship repairing areas.
Who’s Covered Under the LHWCA? Who’s Not?
Many maritime workers are under the protection of the LHWCA. These include such occupations as longshore workers and harbor workers, such as shipbuilders, ship repairers, and ship-breakers. Excluded under the act are United States government employees, individuals who caused their injuries through intoxication, and those who caused their injuries through deeds of purposeful self-harm. Interestingly, also excluded are seamen, both shipmasters and crew members, who are covered under a different provision, i.e. the Jones Act or Merchant Marine Act of 1920.
When state workers’ compensation is a viable alternative, the LHWCA also excludes a number of other occupations. These include those workers who perform administrative assistant tasks, the duties associated with a camp, club, or recreational facility, and those working in restaurants and retail establishments and the like.
What the LHWCA Covers, In Detail
- Medical: The LHWCA covers the costs of all services performed by those in the medical profession as a result of the injury. Your medical care, surgery, hospital stay, and accompanying supplies are most of what the act covers. Another benefit is the payment of travel costs and mileage associated with the treatment of the injury.
- Compensation of Pay: Not only are your medical needs covered but the LHWCA also gives you some percentage of original pay or salary. The act judges between the national average of weekly pay and your own weekly average. The numbers work out to your receiving no more than either your full average weekly pay or twice the national average of weekly pay. You will receive the lesser of the two. These averages are each taken from the time of your injury.
- Disability: The LHWCA demarcates between four types of disability. Here is a quick breakdown of the pay you can expect under each of them.
- Temporary and Permanent Total Disability:The injured will receive a total of 2/3 of his or her weekly average pay. The amount changes every year. It’s based on different iterations of the weekly national average pay. Temporary disability is subject to the current national weekly average applied to the time period of your injury. Permanent disability rates come from the previous year’s national weekly average pay.
- Temporary and Permanent Partial Disability:The compensation for a temporary partial disability is also 2/3 of the weekly average pay. It is slightly more complicated for those with a permanent partial disability. The LHWCA provides a listing of temporary disabilities and the number of weeks the injured individual will receive the 2/3 average pay.
- Vocational Rehabilitation: If you can’t return to work, the LHWCA provides for vocational rehabilitation, which is basically job retraining. You can get evaluated and tested, counseled and placed, and even possibly return to school. In fact, if schooling is your selected option, the act may pay for tuition, books, and other necessary supplies. There is also the possibility of a maintenance allowance of no more than $25 per week.
- Death Benefit: If the employee is deceased because of an injury under the LHWCA, the surviving spouse is due 50% of his or her average weekly pay. This payment will last for the life of the spouse or until remarriage. If the deceased and spouse have children, the spouse is also due 16-and-2/3% for each child on top of the 50% payment. Surviving children, if no surviving spouse, get 50% of the average weekly wage for the first child and 66-and-2/3% for all other children. This sum is shared among the surviving children. Other surviving beneficiaries can include any grandparents, parents, siblings, or grandchildren that are dependent upon the deceased employee’s income.
Are you a longshore, harbor, shipbuilder, or ship repairer who’s affected by a work-related injury? It may fall under the LHWCA. If your injury has left you with few options and little hope, we would like to help you resolve your situation. We’ve solved many cases identical or similar to your own. Please feel free to drop us a line at 1 (800) 836-5830, so we can help you get your life back.
The Longshore & Harbor Worker’s Compensation Act
If you are a maritime worker, it is important that you are informed about the Longshore & Harbor Worker’s Compensation Act. The Longshore & Harbor Worker’s Compensation Act (LHWCA) is a federal law that covers maritime employees who have sustained work-related injuries. If you have sustained work-related maritime injuries on the navigable waters of the United States or adjoining areas, you may be entitled to compensation.
The LHWCA allows employees to seek compensation, medical care, and vocational rehabilitation services if required. It covers longshoreman, harbor workers, shipbuilders, and more. Don’t get the LHWCA confused with the Jones Act, which covers seamen. The LHWCA covers maritime-specific work.
Take a look at the graphic below to learn more about The Longshore & Harbor Worker’s Compensation Act and be sure to contact your maritime injury attorney. They know the ins and outs of the LHWCA and can assist you in getting the compensation you deserve!
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Is Maritime Law Affected by Location?
An offshore injury can occur anywhere on any body of water in the country. No matter what state that body of water might be located in, those who work out on the water fall not under the jurisdiction of that state’s law but under the jurisdiction of U.S. maritime law.
Because many Americans are unfamiliar with the concept of maritime law, offshore injuries tend to raise an interesting question: Does the location of an accident affect how maritime law is applied? In short, the answer to this question is generally “no.” However, there are some cases where the location may be relevant.
How Location Affects the Cases of Injured Maritime Workers
Maritime law is still somewhat confusing for many, including maritime workers themselves. As a result, some workers who are injured offshore don’t bother to seek compensation due to uncertainty regarding their rights. This makes it somewhat difficult to ensure that injured maritime workers are given the maintenance and cure payments they deserve.
With regard to location, maritime law usually supersedes (or overrides) state law. This means that any worker that suffers an offshore injury will be covered by maritime law standards and will not be subject to state restrictions on compensation. There are, however, a few exceptions.
One exception to this rule is that the injury must have occurred on navigable waters. In addition, any injuries that took place on or near a dock or other fixed platform may be considered to have occurred on “land,” even if the platform was located on navigable waters. If an injury is determined to have happened on land or in non-navigable waters, the case will fall under the jurisdiction of the state.
Find Experienced Representation for Your Maritime Injury Case
If you’re uncertain whether your injury is covered by maritime law or if the body of water on which you were injured is considered “navigable,” you may want to speak with an experienced maritime attorney. Our maritime law practice has been representing offshore injury victims for over 100 years, and our professional attorneys have helped recover over $720 million in compensation.
To learn more or discuss your case for free, give us a call at (888) 297-4553.
Union Membership & Maintenance and Cure: What You Should Know
In maritime law, any maritime worker injured or made ill by an accident on the job has the legal right to be compensated, no matter what happened or which party was at fault in the incident. The law that governs this compensation is known as “maintenance and cure.” “Maintenance” refers to the daily needs and living expenses of the maritime worker, while “cure” refers to any hospital bills or other medical expenses related to the injury/illness.
What Is a Union Seaman?
A union seaman is one who is part of a labor organization that aims to support and protect the rights of maritime workers. As such, a union seaman’s work contract may be under the jurisdiction of various union rules regarding how much he or she will receive for maintenance and cure in the case of a workplace accident.
How Union Membership Affects Maintenance and Cure Rates
Because some labor unions set specific maintenance and cure rates based on what they believe is most fair for its members, the pre-determined rate given by the union will always be what is paid, regardless of the circumstances. For example: if the union contract specifies that maritime workers will receive maintenance of $900 each month, an injured union seaman will receive $900 a month.
It is important to note, however, that this is not necessarily the case nationwide. In some areas of the country, your contract may not fall under union rules regarding maintenance. The best way to know for certain where you fall is to discuss your case with an experienced maintenance and cure attorney.
Get What You Deserve with an Experienced Maritime Lawyer
If your employer refuses to pay the maintenance and cure that you are owed as a result of an accident, it’s time to enlist the help of a professional maritime law attorney. In 100 years of representing maritime workers, Maintenance and Cure lawyers have recovered more than $720 million for injured offshore workers.
To discuss your case for free with a knowledgeable maritime lawyer, call us today at 1-800-836-5830.
Common Causes of Injuries Upon Offshore Rigs
Many of our petroleum energy needs are met from offshore oil rigs and the workers who work on these rigs daily. Unfortunately, working offshore presents itself with the real world potential for accidents, injuries, and, in some cases, even death.
There are several common causes and reasons for maritime accidents and injuries, ranging from slips and falls to poorly maintained equipment and understaffed working conditions. Fortunately, Maintenance and Cure maritime laws are designed to protect workers, regardless of who was at fault for the injuries.
The extent of injuries does depend upon the type of accident the worker experienced. Personal injuries can be severe, in some cases, resulting in broken or lost limbs, as well as brain and spinal trauma. To discover some of the more notable recent offshore oil rig accidents and additional information about the common causes, types of injuries, and why accidents occur, please feel free to continue reading the following infographic!
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Timeline of a Personal Injury Case
You’ve suffered an injury. What do you do now? Depending on the circumstances, you may be able to file a personal injury lawsuit, but how do you know if you have a valid case? Even if you’re sure a lawsuit is the right action, there are a number of questions to be answered. What should you do first? Should you contact a lawyer immediately? When should you see a doctor? How long will the process take? What is your responsibility and what is your lawyer’s responsibility?
Pursuing a lawsuit can be a complicated business. Thankfully there are attorneys who can help you navigate the complexities of the legal system. Of course, the first few steps are your responsibility. Only after seeking immediate medical attention and choosing a qualified attorney can the legal system go to work for you.
In the end, knowing the proper procedure for filing a personal injury lawsuit is crucial to ensuring a favorable outcome. It’s also important to remember that a personal injury lawsuit may take a great deal of time and effort, on your part and on the part of your lawyer. More than anything, you’ll need to be patient while the process unfolds.
We’ve created this helpful infographic to give you the critical information you need to get the ball rolling. Take a look at the graphic below to learn more about the steps you’ll need to take if you want to file a personal injury lawsuit.
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