FREQUENTLY ASKED QUESTIONS
How much does it cost to speak with an attorney?
It depends on the attorney. However, Leeward Law provides free 30 minute no obligation and confidential consultations.
Who can file a claim under the Jones Act?
The Jones Act only applies to seamen who work on board U.S. flagged vessels. To qualify as a Jones Act seaman one must spend at least 30% of their time working on board a vessel or fleet of vessels in navigation. In addition, one’s duties must contribute to the function or purpose of the vessel or vessels.
If this standard is met the Jones Act allows a seaman or their family to file a civil lawsuit against the seaman’s employer in the event of personal injury or death. If it can be proved the seaman’s injury or death was caused in part, no matter how small, by employer’s negligence they or their family are entitled to monetary damages.
Who can file a claim for unseaworthiness?
Unseaworthiness is a doctrine of liability found under general maritime law. In general, vessel owners and operators owe to seamen employed as the crew the duty to provide a seaworthy vessel. However, the doctrine has been extended to cover maritime workers who are not covered under the LHWCA and are not members of the crew but do the ship’s work and are exposed to the ship’s hazards. When this duty is breached and the breach is the proximate cause of a seaman’s injury, the seaman is entitled to recover monetary damages.
Unseaworthiness is proved when a vessel, including its gear and crew, or its appurtenances is found to be not reasonably fit for its intended purpose. Examples of unseaworthiness have been found to include: improper method of operation, unsafe procedures, inadequate manning, incompetent crew, insufficient crew, inadequate training, defective hull, defective equipment, improper packing of cargo or stores, defective gangway, and unreasonably slippery decks and ladders.
When am I entitled to Maintenance and Cure?
Maintenance and Cure is a no fault provision. As long as you are employed as a seaman and you were injured or fell ill while in service of the vessel (even while ashore) your employer must pay your maintenance and cure benefits until you reach maximum medical improvement. If your employer does not timely pay you a daily maintenance rate and your medical treatment they are subject to punitive damages.
How are Unearned Wages calculated?
Unearned wages are due to a seaman who had to get off a vessel due to injury or illness. Unearned wages are owed till the end of the voyage. On top of your base pay, some jurisdictions require the employer to pay for any expected overtime, specialty pay or vacation time.
How long do I have to file my maritime personal injury claim?
The prescribed window of time to file a lawsuit is called a statute of limitations. Each cause of action will have its own statute of limitations.
Generally speaking, you have three years from the date of your injury to file suit. However, there are exceptions to the statute of limitations called tolling provisions. A statute of limitations is usually allowed to be tolled when something beyond the control of the injured party affects their ability to file suit. If it has been more than three years since the date of your injury and you believe there is justification for not having filed suit yet, consult with an experienced maritime attorney to see what options you may have.
Should I accept a settlement offer?
Do not sign anything without first consulting an experienced maritime lawyer first. Any agreement you sign could be waiving your right to bring a claim in the future. Remember, if your employer or the insurance company has asked you to sign a settlement agreement they know your claim has real value and they are scared to have you file it.
A common question asked by prospective Plaintiffs is whether they will be required to pay taxes on the monies they receive from a lawsuit. The good news is that the IRS does not consider monies received from lawsuits, settlements and awards to be taxable income.
IRC Section 104 specifically exempts from the calculation of annual gross income (AGI) “the amount of any damages (other than punitive damages) received on account of personal physical injuries or physical sickness.” This exemption applies to whether you receive monies in the form of an award at trial or arbitration or through agreement such as a settlement agreement. It may also apply when a company is advancing your wages.
The reasoning behind this policy is simple. Money from lawsuits is considered compensation. It is supposed to make you whole. Look at it this way: If you break your leg and are out of work for a year the money you receive through a lawsuit is compensating you for your loss (i.e. your broken leg, the pain and suffering, the lost wages, etc.). The money you receive does not make you better off than you were before you broke your leg, you have been made whole and thus the money is considered compensation and not income.
Many states also have the same policy of exempting monies received from lawsuits, settlements or awards exempt from the calculation of AGI. As with every rule there are exceptions. Each state may have slight variations in their tax laws. Contact a lawyer for help understanding a particular state’s tax laws.
Find out more about Federal Tax law here.
1. Seek Medical Attention
Your primary concern should be your well being. After all, if you're not healthy enough to work, you will have difficulty making a living to support yourself and your loved ones. Sometimes injuries are not obvious or you may think that the initial pains you feel will just go away. However, without basic treatment injuries that seemed like they were nothing at first can worsen and eventually become debilitating.
2. Report The Injury
An injury, no matter how slight, should always be reported. Even if you believe the injury is not bad you should have everything documented. This will help medical professionals correctly diagnose any issue which may arise later in life.
Just because you report a slight injury doesn't mean you’re not “a tough guy.” There is a historical issue within the industry of telling workers to "just suck it up and do your job”. However, when you're the one putting food on the table at home or putting your kids through college, damn the bravado of others. If you do not report an injury you are less likely to receive treatment and sometimes without even proper basic treatment, injuries can worsen or become debilitating.
More importantly, the company’s safety manual likely requires you to report every injury to the medical officer or your superior no matter how slight it may be. If you do not timely report your injury the company's attorneys will presume you were not injured when you allege you were. These attorneys will argue to the jury you’re either dishonest or that you have a propensity to disregard directives in the safety manual.
3. Document The Injury
After you have received medical attention and as soon as you are able you should collect information about the incident. The more relevant information you are able to collect will better help you receive compensation from the insurance company or your employer. Take photographs of the incident area and any equipment or tools which were involved, get the names and contact information of any eye witnesses and lastly photograph your injuries. Also, if you were sent to see a doctor for medical treatment or diagnosis, request copies of your medical records.
4. Do Not Sign Any Documents
It is very important that you do not sign any documents other than what is required by your company’s SMS. Any document you sign can be used against you in a maritime claim. The only document you should sign is an accident, incident or illness report form used on board the vessel. If after you leave the vessel the insurance company or your employer ask you to provide an additional statement as to what happened do not do so without first consulting a maritime attorney.
In addition, your employer and its insurance company may ask you to sign a waiver or settlement agreement. Do not sign anything without first consulting a maritime attorney. You could be agreeing to waive your right to have your claim heard by a jury or even to be filed in court. Remember, if they want you to waive a right of yours they know your claim has real value and they are scared to have it filed.
5. Contact an Attorney
As already mentioned, do not sign any documents or agreements without having first consulted a maritime lawyer to review your claim. Maritime laws are unique and complex. Seeking legal guidance from an experienced maritime attorney is incredibly important for your claim. Maritime laws are designed to protect maritime workers and ensure that they receive compensation for injuries not recoverable under traditional personal injury laws and workers’ compensation schemes.
Maritime injury claims can be difficult to understand and take time to resolve. You need to work with an attorney who is not only familiar with the process it takes to resolve a claim but one who understands what it is like to work in your shoes. Working with a maritime lawyer who has real world experience on board commercial vessels is invaluable as you’ll have someone who understands what it is like working on a ship.
*The information on this page is not legal or tax advice but should be taken as general guidance about personal injury law.