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Statute of Limitations under the Jones
Act and General Maritime Law
The Statute of Limitations in a Jones Act case is
generally three (3) years from the date of the injury.
There are exceptions to this general rule; a seaman
assigned to vessel owned, operated, or contracted by
the United States government is such an exception.
Actions against the vessel owner for unseaworthiness,
must also be brought within three (3) years from the date
of the seaman’s injury. It is generally a mistake to wait
several months post injury to consult an attorney. While
the diver and his attorney may ultimately decide not
to fle a lawsuit, or even have an attorney contact the
diving company, the advice of an experienced maritime
attorney in the critical days immediately post accident is
invaluable.
Other Remedies Available Under
Maritime Law
The Longshore and Harbor Workers
Compensation Act
The Longshore Harbor Workers’ Compensation Act
is a federally administered program providing wage
compensation and medical benefts to individuals who
sustained injury or contracted an occupational disease
while employed on a navigable waterway or the adjoining
areas that are primarily involved in the loading, unloading,
repairing or building of a vessel. In the event of death,
the LHWCA provides for compensation benefts to be
paid to the employee’s dependents. It is the federal
equivalent of state workers compensation and provides
only limited benefts.
Benefts for permanent and temporary total disability are
calculated at two-thirds of the pre-injury average weekly
wage. An injured employee’s average weekly wage
is an average of the earnings over the past 52 weeks.
Therefore, individuals with long periods of unemployment
or underemployment will have a substantially lower
average than they may believe is appropriate based on
their recent earnings.
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Benefts for temporary partial disability is paid at a rate
of two-thirds the weekly wage loss, based on loss of
earning capacity. Permanent partial disability payments
are intended to compensate the injured employee for
the permanent loss of a body part or bodily function.
The compensation for such a loss is based on a payout
schedule specifed in the Longshore Act. The schedule
assigns a certain number of weeks of compensation the
injured employee may receive for the compensable loss.
Comparison of Rights under the Jones Act
and The Longshoremen’s Act
The signifcance in the differences of benefts due under
the Jones Act and the LHWCA is best illustrated by way
of example. Assume, for instance, that a commercial
diver, age 30, earning $100,000.00 (or with the potential
to earn $100,000.00 or more) per year, loses a leg in
connection with a diving accident. Further assume that
the injury was attributed to the negligence of his or her
employer. In all likelihood, the diver would be medically
disqualifed from continuing a career as a diver.
Under the Jones Act, the disabled diver would be entitled
to a monetary award for the following damages: past,
present and future medical expense; pain and suffering,
both physical and mental for the loss of the limb; any
mental anguish, depression or any other psychological
injury; and a dollar-for-dollar loss in earning capacity.
A $100,000.00 per year loss, through the approximately
ffteen to twenty years for which the diver would have
worked had the injury not occurred, represents a loss,
in present dollars, in the $2 million range. Added to
this amount would be an award for pain and suffering,
both mental and physical, disability, disfgurement, loss
of benefts, loss of enjoyment of life, past and future
medical care and life care services. Under the Jones Act,
therefore, the diver would be entitled to a recovery or
settlement signifcantly in excess of $2 million.
Using the same factual example under the Longshoremen
Act, the same disabled diver would be entitled to medical
expenses and the maximum scheduled compensation
in the amount of $770 for 312 weeks. Thus, under the
Longshore and Harbor Worker’s Compensation Act, the
diver would be entitled to a total sum less than $250,000,
payable over six years.
The disparity in awards is clear. It should be no surprise
that diving contractors and their insurers have vigorously
argued before the courts that commercial divers are
covered under the Longshore and Harbor Worker’s
Compensation Act and not the Jones Act. It is our job to
do everything in our power to establish your entitlement
to Jones Act benefts.
Death Benefts under LHWCA
Surviving spouse benefts are paid at a rate of 50% of
the average weekly wage either for the lifetime of the
spouse or until he or she remarries. If dependent children
also survive the employee, additional compensation may
be paid to bring the death benefts to two-thirds of the
employee’s average weekly wage.
Surviving dependants’ benefts are paid on behalf of one
child at a rate of 50% of the average weekly wage.
Reasonable funeral expenses up to a maximum of $3,000
may be paid under the Act.
Outer Continental Shelf Lands Act
For those divers or maritime employees who do not
qualify as a seaman but suffer injury while working
aboard a platform or stationary rig the Outer Continental
Shelf Lands Act (OCSLA) may provide a remedy.
OCSLA applies outside 10 nautical miles off the shore of
Texas and the Gulf Coast of Florida, and applies 3 land
miles off the coast of Louisiana. Land-based tort suits
against non-employers for platform injuries are governed
by the adjacent state’s law, regardless of the location of
the distance of the platform from shore.
OCSLA also incorporates the law of the adjacent state
as “surrogate federal law” if it is not inconsistent with
maritime law.
OCSLA may be relevant to the diver injured while diving
directly from a platform without the assistance or support
of a vessel.
Benefts under the act are as provided by the LHWCA
discussed earlier. OCSLA also allows state law claims
against a third party such as a sub contractor who may
have caused or contributed to the injury. Recoverable
damages in third party actions are similar to those
discussed with regard to the Jones Act.
It is important to note that the statute of limitations in
an OCSLA action may be much shorter than the typical
General Maritime law 3 year period. In Louisiana, for
example, a 1 year statute of limitation may apply.
