THE LEGAL RIGHTS OF A COMMERCIAL DIVER

About Delise & Hall

Delise & Hallis a New Orleans, Louisiana, based law firm whose primary area ofpractice involves the representation of recreational and commercial divers in all aspects of maritime law.Since 1974 Delise & Hall has represented the interests of commercial andrecreational divers from the Gulf of Mexico to the Gulf of Cadiz, from the British Isles to the MarshallIslands in matters concerning the Jones Act, maritime contracts and vessel charters, products liability,personal injury and wrongful death litigation, salvage rights and vessel documentation. In an effort topromote diver safety, the firm also sponsors diver safety seminars and related activities.

For further information on any maritime legal matter, or to receive the firm's publications Your Rights asa Diver,The Legal Rights of a Commercial Diver, or The Diver's Legal Log, please call, write oremail us at:

Bobby J. Delise, attorney, is a native of New Orleans, Louisiana, and a founding partner of the firm. Acertified diver since 1976, Mr. Delise's primary specialty is the representation of an international clienteleof oilfield, inland, and construction commercial divers and recreational divers in personal injury litigation.In addition to his litigation practice, Mr. Delise has engaged in the representation of individuals andenterprises in international and commercial litigation and contracts.

Mr. Delise received his Bachelor of Science from Louisiana State University in 1976, his Juris Doctor(J.D.) from Loyola Law School in New Orleans in 1979 and a Master of Laws (LLM) from Tulane LawSchool in 1990. He was admitted to the Louisiana State Bar Association in 1979 and has been admittedpro hac vicein numerous Federal and State Courts all throughout the United States. He is admitted tothe Texas Bar Association. Mr. Delise holds membership in the Association of Trial Lawyers of America,The Louisiana Trial Lawyers Association and an associate membership in the Undersea and HyperbaricMedical Society. He is a visiting skills professor at Loyola Law School in New Orleans and a member ofthe faculty of the National Institute of Trial Advocacy. He has presented lectures and legal divingseminars before the Undersea and Hyperbaric Medical Society, DAN, the Association of Trial Lawyers ofAmerica and numerous other professional societies and organisations.

Patrick M. Amedee, attorney, is a native of New Orleans, Louisiana and a founding partner of the firm.Mr.Amedee's primary specialty is the representation of commercial divers in personal injury litigationwith exhaustive experience in hyperbaric medical and legal issues. In addition to his diving specialty, Mr.Amedee concentrates in the field of environmental law, toxic tort litigation and wildlife conservation law,as well as international trade and commerce. Mr.Amedee received his Bachelor of Science fromLouisiana State University in 1977, his Juris Doctor (J.D.) in 1980 from Louisiana State UniversitySchool of Law and a Master of Laws, (LLM), in Environmental Law, in 1992 from Tulane Law School.

Alton J. Hall, Jr., attorney, is a native of Natchez, Mississippi, and has been practicing admiralty lawsince 1991. Mr. Hall has been a PADI open water instructor for over a decade, with a Master ScubaDiver Trainer rating, teaching every level of diving, including many specialties. He is also a certifiedNACD cavern instructor, a cave diver through NACD and NSS-CDS, and a recipient of the Wakullaaward. Mr. Hall has extensive experience in mixed gas diving, deep diving, cave exploration and wreckpenetration. He has served as a member of national and international cave and wreck divingexpeditions. Mr. Hall received his Bachelor of Science from Mississippi State University in 1986, and hisJuris Doctor (J.D.) from Tulane University in 1991. Areas of expertise include all aspects of admiraltylaw, with specific emphasis on diving, salvage, treasure, major personal injury, charter party andcollision litigation worldwide. Mr. Hall is admitted to all Louisiana State and Federal courts, as well asthe United States Fifth Circuit Court of Appeals, the Federal Maritime Commission and the United StatesSupreme Court. He has been admitted pro hac vicein numerous Federal and State courts throughoutthe United States.

Dear Diver:

Why publish a book exploring the legal rights of a commercial diver? There are many reasons. The first is that commercial diving is big business. Not only is it big business for the diving contractors who invest much in the way of capital, but it is also big business for the diver who has invested much in the way of blood, sweat and tears in his or her career as a professional diver. When a diver's career is in jeopardy as the result of a tragedy, be it a tragedy which occurred in the pursuit of oil and gas in the Gulf of Mexico, Pacific Rim, or North Sea, or in an inland waterway or power plant, much in time, personal fortune and livelihood may be lost. With this much at stake, ignorance of the law can be very expensive. This booklet attempts to provide the diver with a general appreciation of the legal rights of a diver under the maritime law.

Diving contractors and their insurers are staffed with attorneys to provide advice and counsel. The individual diver cannot afford such a luxury.This outline of the law attempts to "level the playing field," so-to-speak, in the diver's day-to-day relationship with the diving contractor and its insurance company.

Within the diving industry, there are many myths concerning the legal rights of a commercial diver. For example, many divers believe that they have only one year from the date of an accident to file a lawsuit, when, in fact, they have three years. Another myth is that all commercial divers are covered under the Jones Act. In fact, diving contractors and their insurers have recently been successful in denying Jones Act status to certain divers. Hopefully, this publication will help de-mystify maritime law.

Finally, this publication is a way by which we can introduce ourselves to the newer members of the commercial diving community. Our firm has represented the interests of commercial divers throughout the world for over 20 years. We take a unique approach in our representation of commercial divers. We do not advocate litigation. Litigation should be the last resort in resolving a claim between a commercial diver and his or her employer.Along those lines, we hope that the information found within this publication will aid commercial divers attempting to resolve legal differences with their employer.

However, when lines in the sand are drawn and there is a need to hire legal counsel, we would like to be considered the diver's first choice. There are many lawyers - some may argue "too many." However, it is rare indeed to find a law firm which is knowledgeable in both maritime law and the complexities surrounding the theoretical and practical problems associated with commercial diving and hyperbaric medicine. We count ourselves as one of the few.

Sincerely
BOBBY J. DELISE

P.S. For additional copies of this booklet, please contact us by telephone, in person, via fax, mail or email through the following addresses:

THE JONES ACT

Perhaps the most widely recognized legislation in the area of maritime personal injury is the Merchant Marine Act of 1920, more commonly known as the Jones Act. The Jones Act provides that an employer (dive company) is responsible for any damages sustained by an injured worker as a result of the company's negligence, the negligence of a co-employee or the unseaworthy condition of a vessel. The specific damages to be compensated will be discussed further below.

History and Purpose

In 1920, the United States Congress passed the Jones Act. Beginning at 46 United States Code, Subsection 688, the Jones Act reads 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 maritime worker is entitled to recover monetary damages upon a showing that the injury is attributable to an unseaworthy vessel or negligence on the part of his or her employer or a co-employee. Having proved that the damages were caused by such negligence or unseaworthiness, the injured seaman is entitled to recover a monetary award for: past, present and future physical and mental pain and suffering, a dollar-for-dollar loss of earning capacity,medical expenses and anyother monetary lossresulting from loss of employment as a maritime worker,i.e., savings plans, medical disability insurance, life insurance or contributions to a pension plan.

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.

Seaman Status Under the Jones Act

There are many workers who ply their trades and professions offshore. Some work aboard offshore drilling and production platforms. Others work aboard transoceanic freighters. Various laws have b e e n enacted toprotect thevarious offshore workers. Under the Jones Act only seamen are protected.

Historically, admiralty courts deciding Jones Act cases have recognized that commercial divers are "seamen" under the Jones Act. In order to qualify as a seaman a diver must simply satisfy two essential criteria:

Contribution to the Function or Mission of a Vessel in Navigation

First, 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 fulfill this first requirement. Commercial divers who work inland from wharves or structures at power plants or other land-based facilities would not, however, satisfy this requirement.

The boat or work platform from which a diver works must be a vessel in navigation. The Courts have consistently ruled that "construction barges," or "spud barges," incapable of self propulsion or navigation may not be "vessels in navigation" for purposes of the Jones Act.

In determining whether a work platform is a vessel, the courts look 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 is not a "vessel" covered under the Jones Act.

Most diving vessels are covered under the Jones Act. By the very nature of the industry most diving operations take place from vessels which must transport diving personnel, equipment and support systems to the work site offshore. It is only in those unique situations when diving operations take place aboard spud barges or from land based facilities that the watercraft will not be considered a "vessel."

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 required relationship or attachment must be substantial both in "nature and duration."

In imposing this requirement the law seeks to d i fferentiate between "landbased" workers whoonly

Only workers who are consistently faced with the "perils of the sea" on a day-to-day basis are afforded the protection of the Jones Act.

periodically work offshore and "offshore" workers who in fact make their living offshore as a matter of course. Only workers who are consistently faced with the "perils of the sea" on a day-to-day basis are afforded the protection of 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 vessel or fleet of vessels this requirement is easily met. Under that scenario, the diver would be considered a Jones Act seaman.

For freelance divers, however, establishing a substantial attachment to a vessel may be a bit more difficult. 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.

Recent Attacks on Divers' Legal Rights

In the 1992 federal court case of Ashley v. Epic Divers,Epic Divers, Inc. of Harvey, Louisiana, successfully argued that its employee, a freelance diver, working transitorilyaboard several vessels owned by various owners, was nota Jones Act seamen.

It was the court's opinion that the diver, assigned to different vessels, owned by different owners throughout the history of the diver's employment, did not qualify as a seaman under the Jones Act.

Seizing upon the ruling in Ashley v. Epic,diving contractors and their insurers have sought to deny commercial divers the protection afforded under the Jones Act.

The thrust of their argument was that divers and oilfield workers should be covered under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), as opposed to the Jones Act. This argument was prompted by the historically high monetary awards and settlements paid to divers in Jones Act cases and the contrasting significantly lower awards and reduced rights under the LHWCA.

Under the LHWCA, a maritime worker is not entitled to recover damages, as in the Jones Act. Rather, an injured maritime worker is entitled to scheduled compensationbased on an average salary under the scheduleofbenefits found at Section 908oftheA c t .

Unlike a Jones Act seaman, the LHWCA worker is not, however, required to prove that his injury was caused by negligence. The principal difference between the acts is that under the LHWCA the maritime worker is entitled simply to weekly compensation for a limited period, while the Jones Act allows a dollar- for-dollarrecovery of the loss sustained.

Recent U.S. Supreme Court Decision

In 1995 and 1997 the U.S. Supreme Court provided new guidance for the legal and maritime communities on the issue of Jones Act status and the question of "who is a seaman?"

The Supreme Court held that a maritime worker's status must be reviewed based upon the worker's total work history offshore and his contribution and relationship to vessels during his history as a maritime worker.The Court suggested that if the worker spent a "substantial" period of his work year offshore aboard vessels in navigation then the worker would be afforded protection of the Jones Act. It was suggested that a worker who spent less than 30% of his time offshore annually would not qualify as having "substantial" time offshore.

In rendering this decision the Court seems to focus closely on the nature of a maritime worker's employment offshore rather than a requirement that the worker be attached to a particular vessel or class of vessels. As a result more freelance divers should be covered under the Jones Act.

So, What is the Bottom Line?
Commercial divers plying their profession offshore will for the most part 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.

Comparison of Rights Under the Jones Act and the Longshoremen's Act

The significance in the differences of benefits due under the Jones Act and the LHWCA is best illustrated by way of example. Assume, for instance,thata commercial diver, age 30,earning$60,000.00 per year,loses a leg in connection with a diving accident.Further assume that theinjury was attributedto the negligence ofhis or her employer. In all likelihood,the diver would bemedically disqualifiedfrom continuing a career as adiver.

Under the Jones Act, the disabled diver would be entitled to a monetary award for the following damages: 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-dollarloss in earning capacity.

A$60,000.00 per year loss, through the approximately fifteen to twenty years for which the diver would have worked had the injury not occurred, represents a loss, in present dollars, in excess of $1 million dollars. Under the Jones Act, therefore, the diver would be entitled to recovery or settlement in that amount.

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 (66 and 2/3 percent of the worker's average, weekly wage of $60,000.00 per year limited by the maximum benefits of the Act) for 312 weeks. Thus, under the Longshore and Harbor Worker's Compensation Act, the diver would be entitled to a total sum of $237,407, 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.

Wrongful Death Claims

The Jones Act provides a remedy for seamen who are fatally injured during the course of their employment. This remedy is available only to the personal representative of a seaman and the action can be brought only against the seaman's employer. Because the Jones Act is the exclusive remedy available to the family of a seaman killed by his employer's negligence, state statutes regarding wrongful death cannot be utilized. If, however, the seaman's death is caused by the negligence of someone, in whole or in part, other than the employer, the diver's representative can bring an action under the general maritime law which, in most cases, is similar to state wrongful death statutes.

As Jones Act seamen, divers are treated as wards of the Admiralty Court. Accordingly, commercial divers should not fear, but rather, embrace the law.

Additionally, seamen killed as a result of the unseaworthiness of a vessel owned by his employer, or a third-party, have an action under the general maritime law. Finally, a seaman (or anyone else) killed outside the territorial waters (beyond three nautical miles) has an action under the Death on the High Seas Act, which can be found at 46 United States Code, Section 72.

The family of a seaman killed as a result of negligence or the unseaworthiness of a vessel is entitled to recover funeral expenses, loss of financial support, value of lost services, loss of probable inheritance for children and loss of nurture, care, guidance, support and training. Additionally, the seaman's estate can recover for pre-death conscious pain and suffering.

If the incident occurred aboard a fixed platform, either in state territorial waters or on the Federal Outer Continental Shelf waters, the law of the adjacent state would apply.Therefore, if a diver is killed off of the coast of Louisiana while aboard a fixed platform, the wrongful death laws of Louisiana would apply. On the other hand, should the incident occur on Federal waters, beyond three miles of the shoreline, the Death on the High Seas Act (DOHSA) would apply.

If the incident occurs within state territorial waters, either state law or a remedy created by the general maritime law would apply.

Suffice it to say, wrongful death in a maritime setting is perhaps the most complex, contradictory, and overlapping area of admiralty litigation. Depending on the act sued under, certain remedies will or will not be available. For example, under the Jones Act, a wife's claim for "loss of society" is not available. Conversely, if the death occurs as a result of an incident occurring on a fixed platform in Louisiana waters or in federal waters off the coast of Louisiana, the State of Louisiana's wrongful death statute would provide the "loss of society" remedy. Because of the complexities associated with wrongful death litigation in a maritime setting, it is strongly advised that the family of a deceased diver contact legal counsel experienced in admiralty litigation.

The Longshoremen and Harbor Worker's Compensation Act, Section 909 sets forth the beneficiaries and schedule of benefits recoverable under the LHWCA when a maritime worker's injuries result in his death. The LHWCA 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, LHWCA 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 and compensation for children is 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.

Dive Company Negligence under the Jones Act

Divers maintaining claims against their employers are encumbered with unique burdens of proof. It is not difficult to persuade a jury that a motorist who runs a stop sign and causes an accident is negligent. Proving negligencewithin the context of diving-related accidents may not be as simple. When is a company negligent?The standard of conduct is very clear.

A dive company 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.

It is, in other words, the failure to exercise ordinary care under the circumstances. This standard of care is dictated within the diving industry and is based on modern industry standards and Coast Guard regulations.

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 following examples are typical of dive company negligence.

lmproper decompression tables or improper use of decompression tables

Atypical example of company negligence is the improper use of decompression tables or the use of a table which is inherently unsafe. The issue is, "when is a table unsafe or improperly used?"

Decompression schedules should be conceived through scientific research completed by the Navy, government agencies or private research efforts at competent research facilities and subject to peer review within the medical and scientific communities.

Tables conceived in the field or developed in an ad hocmanner 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 field. Such isnegligence, 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 useof decompression schedules. If a dive is performed

To ignore the dictates of the tables or the manual is a blatant disregard for the lives and safety of the divers.

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 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 ofthe tables or the manual is a blatant disregard for the lives and safety of thedivers.

Aprofessional diver should scrutinize the tables to be used on a dive and discuss with the supervisor the anticipated bottom time and depth 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.

Industry practice in this regard includes serial monitoring of neurologic symptoms at appropriate stops during ascent and descent while using the 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 properly treat an injured diver constitutes negligence.

Improper Equipment, Undermanning, and Inappropriate Operations

The use of proper equipment and qualified personnel is paramount in the establishment of safety on the work site in commercial diving operations. Most dive company manuals provide for particular job specifications. 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

Safe, competent dive companies avoid placing their divers in operational settings which present unreasonable and unacceptable risks of danger.

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 violative 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.

The Company Safe Practices Manual

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.

The 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? It is often times the most damaging evidence in a court of law. If you do not have a company manual,get one!It may bevaluable in the future.

Causation Under the Jones Act

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.

An example of improper conduct which would be termed negligent yet does not expose a company to liability may involve the following scenario. Assume that a rack operator fails to strictly 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, 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.

The Legal Defense of Contributory Negligence

Alegal defense 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 defined 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.

THE GENERAL MARITIME LAW

In addition to the Jones Act, divers and maritime workers are protected by the General Maritime Law. The General Maritime Law is the historical accumulation of court decisions rendered by the admiralty courts.

Under the General Maritime Law, every ship owner or operator owes to every member of the crew employed aboard a vessel the duty of keeping the vessel in a seaworthy condition.To be a member of the crew it must only be shown that the maritime worker "assists in the function or mission of the vessel." For instance, if a diver is being used in a pipe laying process to either inspect the pipeline or assist in the tie-in at the structure, he or she would be considered a crew member of the pipe laying barge.

Unseaworthiness

If the vessel is found unseaworthy,any injury or accident which was sustained as a result of that unseaworthy condition imposes liability on the

The vessel owner cannot point the finger at a third party if an unseaworthy condition was present on the vessel.

vessel owner or operator.This responsibility exists at any time, even though the owner or operator may have exercised due care under the circumstances or may have had no knowledge or notice of the unseaworthy condition.

The obligation of the vessel owner to provide a seaworthy vessel is absolute and non-delegable; that is, the vessel owner cannot point the finger at a third party if an unseaworthy condition was present onthe vessel .

In order to prove an unseaworthy condition, all the injured diver has to do is prove that the vessel was not reasonably fit for its intended purposeand that as a result of that condition, the worker was injured.

Liability for an unseaworthy condition does not depend upon negligence, fault or blame. This is different than a negligent act in that, as mentioned earlier, the ship owner need not have knowledge or notice of the unseaworthy condition. Examples of unseaworthy vessels or conditions rendering a vessel unseaworthy include the operating of a ship or a vessel with improper or inadequate equipment, improper or incompetent crew members, or operating a vessel not suited for dive operations. Aslippery deck or faulty stairway are other examples of unseaworthiness.

BENEFITS UNDER THE JONES ACT AND GENERAL MARITIME LAW

Monetary Damages

An injured diver covered under the Jones Act or under the General Maritime Law is entitled to be compensated for the following damages if the employer is at fault:

• Physical pain and suffering;
• Mental pain and anguish;
• Physical disability, impairment of bodily functions, inconvenience, and the effect of injuries upon the normal pursuits and pleasures of life;
• Past loss of income;
• Impairment of earning capacity or ability to earn a living in the future;
• Medical expenses, including any reasonable and necessary expenses for attention and care by physicians, surgeons, nurses or attendants, surgical, hospital and other services and care and supplies in the past or reasonably certain to be required in the future including treatment for the alleged injuries, their complications and residuals, if any;
• Found, i.e., the reasonable value of food and lodging which would have been afforded while working had the diver not become disabled;
• The reasonable value of any additional fringe benefits, such as health and life insurance, retirement plans, profit sharing, etc.

Maintenance and Cure

In addition to a claim for damages, a seaman is entitled under the maritime law to maintenance and cure.

The right to maintenance and cure is perhaps the most sacred legal right under Admiralty Law.This right affords the injured seaman financial resources to weather the financial storm surrounding an occupational injury offshore. It also includes repatriating the seaman to his or her home.

Maintenance entitles the seaman to a per day compensation in an amount sufficient to defray the costs of food, lodging, transportation to and from health care providers and utility expenses during his or her period of convalescence.

Additionally, the diver is entitled to the payment of cure. The right to cure entitles the seaman to be provided with proper medical care and treatment; and, if the medical personnel provided to the seaman by the company is not to the diver's liking, the diver may choose another.

Duration of Maintenance and Cure

The right to maintenance and cure exists as long as the diver medically requires it and as long as he or she has not reached a point which is known in legal terminology as maximum medical cure.

Maximum medical cure is defined as the end of the convalescence of the injured diver.At that point in time wherein the diver expects no further improvement medically the diver has reached maximum cure. Until the diver reaches that point he or she is entitled to an allowance for subsistence and medical payments.

Consequences of the Company's Failure to Pay

If the employer fails to provide maintenance and cure, and such failure or withholding is done arbitrarily, capriciously or in a callous disregard of the claim, the injured seaman is entitled to the payment of attorney's fees incurred for the prosecution of legal proceedings to have a court of law order the company to make such payments.

Amaritime employer can escape the legal obligation of paying maintenance and cure only upon a showing that the injured seaman was not injured in the service of the vessel or if the injury occurred through the injured worker's willful misconduct. There is no requirement that the maritime worker prove negligence, unseaworthiness or fault on behalf of the employer or a co-employee.

Dollar Amount for Maintenance

The question often asked is, "How much is the diver entitled to for maintenance?" The maintenance payment is calculated on the average monthly expenses for lodging, food and utilities. Courts have ruled that this amount can range anywhere between $8.00 - $35.00 per day; typically the average is approximately $20.00 per day.

Many ethical companies acknowledge that it is impossible to sustain oneself at $20 per day; in deference to their employees they pay more. This is especially so when the diver has a family to support. However, accepting funds in addition to maintenance payments may be reviewed by a court of law as accepting "advances" towards a future settlement.

It is important that an injured diver be aware that an insurance company may expect that advances will be deducted from an anticipated settlement. With this in mind, it is important to scrutinize the maintenance check and assure that nowhere on the check is the phrase "partial settlement" or "toward settlement" or "advance of settlement" found. If it is, be sure to discuss this with the insurance company, to ensure that you are not settling your claim or a part of your claim.

OTHER LEGAL REMEDIES UNDER THE MARITIME LAW

Outer Continental Shelf Lands Act

Another area of protection provided by 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, injured while working aboard a platform or stationary rig on the Outer Continental Shelf of the United States. The importance of this law to the diver comes into play when a diver is injured while diving directly from a platform and without the assistance or support of a dive vessel.

Benefits under the Act

The Act provides that the injured worker shall receive benefits under the LHWCA, i.e., two-thirds of his or her average weekly wage for the period of his or her disability, up to a statutory maximum of approximately $770. Additionally, the worker is entitled to the payment of all medical expenses associated with his or her injury. Unfortunately, the rights of the injured party against the worker's employer are limited to the weekly compensation and medical expenses. There are no provisions for pain and suffering, loss of future wages, or loss of earning capacity.

Third Party Actions

As is obvious, the Act does not provide the benefits found under the Jones Act or the General Maritime Law. If, however, the injury resulted from a defective conditionof the platform or fromnegligent conduct of the platform owner, and the diver was working for someone other than the owner of the platform, that is, a service company, the diver may have a right to sue and recover from the owner of the platform. This is known as athird party action.In a third party action, the damages due would include all of the damages under the Jones Act or General Maritime Law discussed above.

ON THE JOB SAFETY

In no other industry is the phrase "safety is everyone's job" more applicable than in the diving industry. Safety is surely the most important aspect of a diving job. It is important to remember that the law requires that a diver answer for his or her unsafe actions just as a dive company or vessel owner must answer for its unsafe actions.

With this in mind, every diver should do all in his or her power to make positive contributions to the safety program within the company.The diver should not hesitate to make suggestions to the dive company that will assist it in improving the safety of the company's diving operations. Only through a mutual sharing of suggestions will the diver's work place become a safe work place.

Diving and Drug Usage

Over the past several years illicit drug use has become pervasive in our society.The diving industry has seen its share of drug use and in some cases more than the norm. From a legal, operational and medical point-of-view, drugs have no place in diving.

Drug use impairs judgment, decision-making and good common sense, all attributes needed by the diver and his or her support team. The dive team cannot afford to jeopardize the safety of the job because of a poor decision precipitated by drug-impaired judgment.

Professionally, a diver with a reputation of drug use may become "black-balled" within the industry. Drug testing is legal and is becoming more commonplace within the industry. Companies are becoming more hesitant to hire anyone with a history of proven or suspected involvement with drugs. This includes alcohol abuse.

Medically, drug usage and exposure to the hyperbaric environment is risky. Certain drugs alter the blood flow in the circulatory system. For example, cocaine acts as a vascular constrictor; constriction of the blood vessels prior to diving results in physiological changes which could have life-threatening consequences during decompression. One well respected hyperbaric physician has analogized diving with cocaine in one's system to playing Russian roulette; a diver may survive over the short term, but sooner or later drug use will have very severe consequences.

Prolonged drug abuse may deteriorate mental faculties including speech, memory and reasoning. These same cognitive functions may be affected as a result of a CNS hit to the brain. If it is proven that a diver has a prolonged history of drug use, it may be very difficult, if not impossible, for the treating physician to differentiate between cognitive dysfunction caused by drugs and symptoms associated with a CNS hit. At the very least, drug use by the diver may severely hamper the neurologic examinations necessary to properly document diver injuries.

SPECIAL ISSUES

Doctors and Proper Medical Care

The most important legal right of a diver is the right to obtain proper medical care and treatment from a physician of his or her own choosing. By law, the expenses of such treatment are the responsibility of the diver's employer.As mentioned earlier, in addition to the expenses of the physician's services or medical facility expenses, the company must reimburse the injured diver for the cost of transportation and lodging to and from the physician or medical facility.

As a practical matter, documentation of injuries, personality changes, and disabilities is of extreme importance in any legal claim. Without proper medical documentation, it is almost impossible to prove the existence of an injury.

From the onset of the injury, it is strongly advised that the injured diver maintain a daily log or diary, including daily symptoms, improvements, disabilities, and mental impressions. These entries are important in preparing for future doctor appointments and for summarizing the substance of the claim f o r theinsurance adjustor or company attorney.

Additionally, and more importantly, these entries are important in communicating to a treating physician all the symptoms which the diver may suffer. Seemingly unimportant symptoms may alert the doctor to a serious condition. Maintaining daily logs is also important if the diver suffers from mental lapses or memory loss, which is often associated with serious CNS accidents. An injured diver should include in the medical log all test results as well as dates and reviews of doctor's appointments with all treating and consulting physicians. Adiver has the right to obtain test results and medical reports from any treating or consulting physician. It is very important to secure these documents.

Physician office visits and medical testing

Prior to visiting a doctor, it is highly recommended that a diver review his or her medical log to refresh his or her memory as to the symptoms suffered and improvement experienced prior to the visit. On the evening prior to a doctor visit, discuss with your spouse, girlfriend, boyfriend, family members or associates their observations of problems, both physical and mental, which have surfaced since the accident.

It is important to review and practice the discussion with the doctor before walking in the room. Adiver's recollection of the doctor's visit andoftheexammaybecompletely

It is up to the diver to properly communicate his or her problems and leave no stone unturned.

different than that which was dictated into the physician's report to the dive company and its insurance company. It is up to the diver to properly communicate his or her problems and leave no stone unturned.

Should the diver not be happy with the medical care and treatment afforded by the company physician, he or she is entitled under the law to have a second opinion. Included in that right is the right to be transported to any facility within the reasonable proximity of the diver's home for further care and treatment. Obtaining treatment at a hyperbaric facility of the diver's choice is within one's rights under the law.

Witnesses and Statements

It is through the eyes and ears of your fellow divers, tenders and supervisors that the proof of your case is found. Documentation is extremely important. As will be discussed later, the insurance company investigators and adjustors have enormous resources to investigate your claim. Insurance company investigators go to great lengths to secure statements and evidence.

You should obtain as soon as possible a list of names, addresses and phone numbers of all personnel aboard the vessel. Memories are very short, especially in the case of trauma following a CNS hit or through the excitement and emergency of the moment.

Securing statements of witnesses shortly after the accident serves two extremely important functions. First of all, these statements capture the details of what, why and how an accident occurred. Memories are better shortly after the accident than when you or your attorney seek to acquire a statement several weeks, months or years later. By that time, it may be too late.

Secondly, a written or recorded statement is impossible to change at a later date. Atender may remember in vivid detail the error or mistake made by the captain of the vessel shortly after the accident. Six months later, however, on the verge of breaking out as a diver, subtle pressures may be placed on the tender to "protect the interests of the company."

Giving a Statement

Many a claim or lawsuit is jeopardized by the diver's rendering a statement to a "concerned" adjustor or insurance company investigator.The adjustor or insurance company representative may explain that a statement of how the accident occurred, written or recorded, is necessary to "process the claim" and that without such the settlement or maintenance checks will not be forthcoming. This is utter nonsense.

Information regarding who caused the accident or why the accident occurred is not required for obtaining maintenance and cure benefits. The statement is taken for one purpose and one purpose alone - to acquire any information which may later be used against the injured diver.The only requirement to obtain medical payment is to assist in filling out an accident report for the company.

For injured divers, it is highly advised to never allow anyone, with the exception of a treating physician, or the diver's attorney, to take a written or recorded statement. When discussing a claim with an investigator or adjustor over the phone, preface the discussion with a request that the conversation is not to be recorded. Better still, avoid unnecessary conversation with the adjustors and investigators.

Photographs

Carrying a small camera in one's gear is a minor inconvenience, which at a later date, may prove a very smart idea. In the legal forum, a picture is surely worth a thousand words. Nothing better conveys the message or the proof of a wrongful act than a photograph.

Such photography is to be regulated and done so as not to infringe on company secrets or exclusive methods. Use discretion. There is no law whatsoever prohibiting a worker from documenting through photography an unsafe condition or practice. One's film and camera are personal property.

Claims Adjustors

Following a dive accident, the administration of the claim and any payments of medical bills may be taken out of the hands of the dive company and placed in the hands of the insurance company.At the forefront of this system is the adjustor; his or her role is multi-faceted.Primarily, aclaims representative or a d j u s t o r's job is to "adjust" the claim.

The insurance company, usually located in another state or abroad, must have someone employed locally who can learn about the incident and then inform the insurance company whether the claim has merit. And if the claim has merit, how much the insurance company should pay to resolve the claim. To do so, the adjustor must secure witnesses' statements and medical reports.

Another responsibility of an adjustor may be to negotiate settlement with the injured diver.At that point the adjustor is working on behalf of the insurance company or dive company. It is the goal of the adjustor to secure a settlement at the lowest possible dollar figure. The adjustor is not advocating on behalf of the diver; any representation to the contrary is untrue.

The relationship between the diver and the dive company is of no consequence once the wheels of the claim are put into motion. This occurs shortly after the accident. It is the insurance company which must ultimately shoulder the financial burden, and it is the insurance company who, in the final analysis, "calls all of the shots."

An adjustor's or company's promises to "make good on the accident" or "to take care of our diver" lack legal support unless they are preserved through a valid written contract. If a diver is promised anything, such as a job, pension benefits, etc., such an agreement should be preserved in writing. As will be discussed later, all settlements have great weight when in writing, but very few oral agreements have substance.

Communications with adjustors, investigators or insurance company representatives should be held to a minimum. The diver will undoubtedly be assured that the purpose of the communications is to acquire information for the diver's benefit. Remember that the only benefit of any communication with an adjustor is one-sided, to the benefit of the insurance company.

Adjustors are well-trained professionals who handle claims on a day-to-day basis. They are seasoned veterans who know their job very well. One rarely meets an adjustor who is not a "nice guy." To reduce the value of a diver's claim they will call him or her, talk with them and their family members, employ private investigators, or do whatever possible to gather information which has a detrimental effect on the diver's claim.

They may coerce the diver by delaying maintenance payments needed to provide for family needs. If the diver feels uneasy discussing his or her claim with an adjustor, it is probably for a good reason. In dealing with insurance company adjustors, a diver is not dealing on equal ground.

We have been criticized on more than one occasion about the foregoing remarks regarding adjustors; most of the criticism has been levied by diving contractors or by the adjustors themselves. It must be noted and recognized that the adjustors are just doing their jobs. If, however, they are being used to negotiate a settlement, be aware that their job is to have the insurance company write the smallest check acceptable to the diver to settle their claim.

Investigators

During the stressful, unnerving period following an accident, the concerns of the injured diver are more often than not with survival - how am I going to make it, how can I provide for my family? During this same time period, the insurance company has already opened a file, assigned adjustors and attorneys and set the stage for an anticipated, hopefully low settlement.

While the diver is concerning himself or herself with survival, the insurance company is only concerned with "adjusting" the case. It is during this initial unnerving period, immediately after the accident, that the role of the investigator comes into play. It is his or her job to uncover any evidence whatsoever to show that the diver may be fabricating or exaggerating his or her injuries. The insurance company will hire an investigator to follow, to film, or to otherwise document that the diver has reached a point of full recovery or is faking his or her injury.

Aregimen of jogging or weight lifting to get back in shape will be documented on video and used not as evidence of rehabilitation but as evidence that the diver has reached full recovery or is malingering.

Our firm has represented divers whose privacy was disturbed for weeks by investigators in search of damaging evidence. Our firm has represented divers who have had private investigators perched in trees on private property in the hope of catching the diverinanawkwardposition.Horrorstories a b o u n d .

Once a claim is made, the injured diver lives in a fishbowl. There is nothing illegal about hiring an investigator, and it must be remembered that, as the police clearly say, anything that you say or do will be used against you at a later date.

Frivolous claims or lawsuits

The hiring of investigators and adjustors is a product of a litigious society. News stories abound informing us of fortune seekers who feel that the legal system is no different than the lottery. If you are lucky, you may become a millionaire. Unscrupulous attorneys help facilitate this atmosphere. The legal system is designed to provide those with legitimate disputes a forum in which they can resolve their differences. The legal system is not designed for "get rich quick" schemes.

The filing of frivolous lawsuits is not only unethical, it is also illegal. Federal and state law enforcement agencies have been established to investigate, seek out and prosecute those who file frivolous lawsuits. Additionally, Judges and the local state bar associations are pursuing attorneys who file frivolous lawsuits.

Settlement

Asettlement is just that - it settles a claim once and for all.Upon accepting settlement funds an injured diver will be told over and over again that the acceptance of the money and signature on settlement papers forever discharges the diving company and the insurance company from any future responsibility.The consequences of one's actions, no matter how desperate the financial position, must be thoroughly considered prior to accepting a settlement. In accepting a settlement and receiving settlement funds the diver is signing away all of his or her legal rights under the law.

Thankfully, not all injuries are so severe as to disqualify the diver from continuing his or her career as a professional diver. Such cases lend themselves to a settlement of the claim without the

The legal system is not designed for "get rich quick" schemes.

necessity of hiring an attorney or filing a lawsuit. Additionally, some claims have no legal basis or foundation. Either the company was not at fault or the diver was not in fact injured. Such claims are best not filed. Frivolous lawsuits only cause damage tothoseindividuals with validlegalclaims.

In any case, however, it is urged that the diver discuss any proposed settlement with competent legal counsel. That is not to say one must hire an attorney. Our firm has, on many occasions, given counsel to settle, without the necessity of filing suit, where the injury is minor or where circumstances dictate that the best interests of the diver are served without legal intervention.

Settling a claim

If it is your intention to try your hand in the settlement process, here are a few suggestions.

First of all, obtain all medical reports and results of medical testing. Do not trust the insurance company's explanation as to the impressions or opinions of the treating physicians. Discuss personally with your doctors the fact that you are attempting to settle your claim, and inquire as to what, if any, residual damage is expected to occur in the future as a result of the injury. Without this knowledge you will compromise your future.

Second, ask the adjustor to provide you with any and all information he or she may possess on the accident. Ask him or her to send you all of the medical reports or medical test results in his or her possession. Request that he or she send you copies of all witnesses' statements, accident reports, photographs or any other important information or documentation of how or why the accident occurred. You can believe that the adjustor or claims representative secured this information; that's his or her job. These requests will be a test of the adjustor's "good faith," the "good faith" that the adjustor has so often mentioned over the length of your relationship.

Thirdly, let the adjustor do most of the talking. Do not allow the adjustor to chisel away the figure you have asked for.Ask that the adjustor justify his or her figures. Do not be swayed by the technique whereby the adjustor explains that he or she must "pass it on to superiors." The adjustor knows what the claim is worth. The "passing it on" is for the purpose of delay.The claim will be settled later in time for less money; at that point the diver will need the money more and will be more desperate to take whatever the offer, no matter how much less. Time is money and no one is more aware of that than the insurance company.

The insurance company, not faced with a pending trial date, holds all the money and, hence, all the cards. As mentioned before, an injured diver is not on equal ground with the insurance company or its adjustors in attempting to settle the claim.

The insurance company may offer what is commonly called a "structured settlement." Astructured settlement allows the insurance company to pay the claim over timeinstead of in one lump sum payment. This maybe a good idea for those who would squander their settlement away. Before accepting such an arrangement discuss the proposal with a certified public accountant (CPA) or legal counsel. The important thing to note is that you can do the same thing with a lump sum settlement by purchasing an annuity through an investment company.All that is important is how much the settlement is worth in today's dollarsand whether you will retain the principal when the investments mature.

Breaking a Seaman's Settlement or Release

Asettlement assures the diver that the sums agreed upon are paid and assures the insurance company that the settling party will not file suit in the future.

Before receiving the settlement check it will probably be necessary for the claimant to attend a settlement conference in the offices of the dive company or insurance company attorney.At the settlement conference the insurance company representative will read over and explain the legal documents and the legal effects of entering into the agreements. The discussions may take place in the presence of a court reporter who transcribes the meeting.

Theinsurancecompany representativewilltell theclaimantthatby signingthedocumentsheorshe will:

FOREVER DISCHARGE ANYPAST OR FUTURE RIGHTS TO SUE THE DIVE COMPANY OR ITS INSURANCE COMPANY IN CONNECTION WITH THE ACCIDENT.

Only after reading and signing the papers will the insurance company representatives give the

The insurance company, not faced with a pending trial date, holds all the money and, hence, all the cards.

claimant the settlement check. For an injured diver this may be a traumatic event for the legal effect of signing the document is to forever waive future legal rights. It will be at that point that a diver fully appreciates the inequality of the negotiations.

The law has acknowledged the unfair bargaining position of the diver. Under certain circumstances a settlement or release may be broken. Under the law, a settlement and release may be overturned:

1. Where the settlement was obtained through coercion or improper promptingby the company;
2. Where the physician was mistaken in his diagnosis(though not prognosis) of the injuries
   sustained;
3. When a diverdidnotfully understandhis or her rights in enteringintotheagreement;or
4. Where there is an inadequacy in consideration;that is where the amount paid was improper in
   light of the circumstances.

To break a release the diver must institute legal proceedings. During the lawsuit the company has the burden of proving that the settlement was done in a fair and equitable manner. In short, in order for a settlement to be binding, it must be shown that there was no advantage taken of the diver.

In any case, the settlement of a claim is a very serious matter. It is inadvisable to settle one's claim if the injury is career-ending withoutconsultingwith competent legal counsel.

Hiring Legal Counsel

Hiring legal counsel is often as traumatic as talking with an adjustor or an insurance company representative. It should not be so as long as one keeps in mind that hiring an attorney is just that - you hire an attorney much like hiring an employee.The attorney works for the client, not vice versa.

In hiring legal counsel be sure that the attorney is well qualified in the field of diver-related accidents. Do not hire an attorney who must learn about diving during the pendency of a lawsuit. Ask the attorney poignant diving-related questions.

In hiring an attorney you must have the same faith or trust as that of a fellow diver on the job. Much of your future will be in his or her hands. In hiring an attorney, investigate his or her qualifications from those who know best, the attorney's past clients. Ask for a list of the divers he or she has represented in the past and contact them.

In hiring an attorney be sure to discuss the matter of attorney's fees and responsibility for payment of the attorney's out-of-pocket costs. Go over the contract with the attorney and request a copy. Once again, ask the attorney's past clients whether theattorney was fair and honest regarding fees and costs.

Issues such as termination of an attorney's services or complaints about an attorney may be addressed to the Louisiana State Bar Association at 601 St. Charles Avenue, New Orleans, Louisiana (Phone (504) 566-1600) or the Bar Association in your area.

SOME FINAL THOUGHTS

In the past, our law firm has been accused of using this booklet to serve its own ends. At the same time we have been complimented by company attorneys and management who have hailed this booklet as an aid to the diver.

Diving accidents occur. Until there is a perfect world people will get injured and killed offshore. As long as there are accidents, attorneys representing injureddivers and insurance companies will remainapart of thedivingindustry. This is a reality.

We hope that everyone within the diving industry will do their best in reducing litigation when injuries do occur. This will only take place when frivolous lawsuits are not filed and when diving contractors and their insurers fully accept legal responsibility when at fault and fairly compensate the injured diver or his or her family.

We will continue to vigorously advocate for the legal rights of the diver. It must be kept in mind that the professional offshore diver is an integral part of the diving industry.The diver is not a tool of the trade that can be discarded after injury much like an old worn shoe. Without the diver there is no diving industry - come any ROV.

Historically, a tug of war has existed between job safety and job performance in the oil patch, i.e., maximizing safety minimizes output and performance. This booklet, Legal Rights of a Commercial Diver, is written to help the diver ensure that the scales offshore are balanced.

We accept any and all suggestions to help make this booklet a positive contribution to the diving industry. It is only through the prudent exercise of the diver's legal rights that true safety is achieved o ffshore. This law firm stands ever ready to assist the diver in fully appreciating and exercising their rights.