Remedies for Maritime Workers who are not Seamen
Maritime workers who are not so closely attached to vessels are still treated favorably by the law when they sustain damages as a result of occupational incidents. Unlike seamen, however, their claims against their employers are primarily restricted to compensation in the form of weekly allowances to defer living expenses while they recuperate. Scheduled benefits are available should the injuries result in permanent disability or death.
While the worker does not receive damages for loss of earnings or pain and suffering the trade-off is that the worker need not prove that his or her employer was at fault in causing the injury. Much like maintenance and cure benefits, the right to compensation is strongly protected by the courts.
It is also significant to note that an injured maritime worker may have a claim for damages against a third-party – a non-employer – upon a showing that the injuries sustained are as a result of an entity other than one’s direct employer. These actions, known as “third party claims, will result in a claim for damages against the responsible party.
Longshore and Harbor Worker’s Compensation Act
In 1927 the United State Congress passed the Longshore and Harbor Worker’s Compensation Act. Found at 33 United States Codes 901-950, the Longshore Act provides that maritime workers who are primarily “engaged in the longshoring operations, and any harbor worker including ship repairman, ship builder and ship builder” are provided legal protections for on-the-job injuries resulting in permanent or temporary disability, or death. Generally speaking, a worker whose job is to load, unload, service, repair or build a vessel found on or near the navigable waters of the United States , or open seas is provided compensation benefits under this Act for disability or death while completing such duties.
Originally enacted to protect only harbor workers or longshoremen, the protections of the Act have been extended to protect maritime workers who work on or near vessels in the maritime setting, or near the navigable waters of the United States, yet who do not fulfill the requirement necessary to be defined as “a master or member of a crew of any vessel.” Thus, under the admiralty law a maritime worker employed within this environment will be defined a “longshoreman”.
Benefits under the Longshore Act – Disability and Medical Expenses
The benefits under this act are limited to compensation established by the law and set as a percentage of the worker’s average weekly wage. Compensation due the worker is set at 66 2/3% of the worker’s previous average weekly wage, to a maximum of $1,047 and a minimum of $261.79 per week.
The compensation due the longshoreman is for the total period of disability. The disability is permanent compensation is paid for a set number of weeks, the exact time period based on the nature of the illness and whether the permanent disability is total or partial. The United States Department of Labor, Employment Standards Administration, Division of Longshore and Harbor Workers’ Compensation, publishes the schedule of benefits and may be found on the Department of Labor website (www.dol.gov).
In addition to the compensation benefits the Longshore Act also provides that the worker is entitled to all costs for medical care and treatment as well as travel expenses to and from such treatment. Additionally, the worker is entitled to select the doctor of his or her choosing as long as the appropriate procedures are followed.
Benefits under the Longshore Act – Death Benefits
The Longshore and Harbor Workers’ Compensation Act, Section 909, sets forth the beneficiaries and schedule of benefits recoverable under the Longshore Act when a maritime worker’s injuries result in death. The Longshore Act awards compensation to the spouse and children of the decedent, or, if no spouse or children, brothers and/or sisters if they are “dependents.” Generally, Longshore Act death benefits provide for payments to the spouse of 50% of the average wage of the decedent, so long as the spouse does not remarry. Compensation due amounts to children 66 and 2/3 percent of the decedent’s average, weekly salary. Unless the child is disabled, or qualifies as a student, he or she will lose benefits at age 18.
Filing a Claim under the Longshore Act
In order to file a claim against ones employer the longshoreman must file the claim within one year of the incident through the United States Department of Labor. Notice of the claim should be made to the employer within 30 days of the incident.
Should the employer dispute the claim an administrator with the Department of Labor will hear the case. Provisions for attorney’s fees are part of the Act; an assessment of attorneys fees will be determined by the administrator.
Longshoreman’s Claims against a Vessel Owner – Claim under 905(b)
In addition to weekly compensation a longshoreman may recover damages
-dollar for dollar loss, not simply weekly benefits-against a vessel owner under the Longshore Act. This claim, known as a claim under 905(b), provides that a vessel owner is responsible for a longshoreman’s damages if the vessel owner’s negligence caused the worker’s damages.
A claim under 905(b) must be filed as an original lawsuit in federal court and will be heard by a judge sitting in judgment. All damages such as pain and suffering, loss of past earning and future loss of earning capacity, as well of past and future medical care, treatment and rehabilitation are due the longshoreman upon proof of the loss and proof of negligence.
Outer Continental Shelf Lands Act (OCSLA)
Yet another area of protection under Federal Law involves the provisions found in the Outer Continental Shelf Lands Act. This Act provides protection for maritime workers, other than Jones Act seamen or longshoremen, injured while working aboard a permanent platform or structure on the Outer Continental Shelf. The importance of this law to the maritime worker comes into play when the worker is injured while working directly on a platform.
Benefits under OCSLA
The Act provides that the injured worker shall receive benefits identical to those found under the LHWCA, i.e., two-thirds of his average weekly wage for the period of his disability, up to a statutory maximum of approximately $1047 and a minimum of $261. 79 additionally, the worker is entitled to the payment of all medical expenses associated with the injury.
Third party actions for Workers Covered under OCSLA
If the worker sustains an injury, disability or death as a result of a defective condition of the platform or from negligent conduct of the platform owner, and the maritime worker was working for someone other than the owner of the platform, a claim for damages is available. For instance, if the worker is employed for a service company, the worker may have a right to sue and recover from the owner of that platform. This is known as a “third party action” under the Outer Continental Shelf Lands Act.
In that case, the damages due would include all of the damages loss, such as pain and suffering, loss of past earning and future loss of earning capacity, as well of past and future medical care, treatment and rehabilitation are due the platform worker upon proof of the loss.