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A Diver’s Claim for Personal Injury
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
work force 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?
Step 1 - Is the diver covered under the Jones Act?
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 satisfes 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 fulfll this frst 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
specifc 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 benefted 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
specifc 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
qualifes 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 identifable 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 diffcult 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 scientifc research completed by
the Navy, government agencies or private research efforts
at competent research facilities and subject to peer
review within the medical and scientifc 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 feld 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 feld. 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 frst 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 compromises a whole host of situations.
The fle cabinets of Delise & Hall are flled 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 over
exertion, 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 identifcation 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 fnding of
negligence is appropriate.
Under Manning and Inappropriate
Operations
The use of proper equipment and qualifed personnel is
paramount in the establishment of safety on the work
site in commercial diving operations. Most dive company
manuals provide for particular job specifcations. 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 precedi
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 strictl
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 diffcult 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 superviso
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 defned 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.
