The Jones Act

Commercial Divers: Jones Act or LHWCA?
Posted by: rzehl
January 27, 2010

When a person is injured offshore, one of the first things a good maritime lawyer will do is determine which body of law will apply to the case. While this might seem like a fairly straightforward task, most attorneys have never handled a maritime case and will not have the faintest idea how to proceed. While most commercial divers will be covered under the Jones Act, a percentage of them will not qualify and will be forced to seek compensation under the less favorable Longshoreman and Harbor Workers' Compensation Act (LHWCA). If you or a loved one has been injured offshore, contact the experienced Texas maritime trial lawyers at Fitts Zehl, LLP today for a free consultation.

In the 1992 case of Ashley v. Epic Divers, Inc., the defendant Epic was successful in arguing that its employee, a freelance diver not attached to a specific vessel or fleet of vessels, was not a seaman for Jones Act purposes. According to the court, because the diver was assigned to multiple vessels owned by several different owners, he did not meet the definition of seaman under the Jones Act.

Unfortunately, this ruling has been used a great deal since in order to deny a significant portion of divers their right to pursue employers under the Jones Act. This was a huge victory for diving contractors, employers and insurance companies because the awards and settlements paid out under the Jones Act have historically always been higher than those sums paid out under the LHWCA. While one can sue for damages under the Jones Act, the LHWCA only allows the recovery of weekly compensation according to a set benefit schedule contained within the Act itself.

Recently, the United States Supreme Court refined what it means to be a "seaman" for Jones Act purposes. The Court held that a worker's complete offshore work history, as well as the nature of his relationship with and contribution to vessels, must be taken into account in order to determine whether or not an individual is entitled to utilize the Jones Act.

Recent U.S. Supreme Court Decision

In the mid-1990's, the United States Supreme Court further clarified the Jones Act definition of a "seaman". The Court 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 worker will most likely be protected under the Jones Act. Freelance divers benefited greatly from this holding because it shifted the focus away from a worker's connection to a particular vessel or fleet of vessels and toward the actual nature of the work being performed offshore. Most freelance divers do not work with just one specific vessel or fleet of vessels.

Jones Act vs. LHWCA: What Are My Rights?

Diving contractors and their insurance companies have worked long and hard arguing that commercial offshore divers are covered under the LHWCA, not the Jones Act. This has been done because the recovery amounts vary drastically between the two bodies of law. Under the Jones Act, if a diver is injured due to the negligence of his employer, that diver will be entitled to seek damages for:

•· Medical expenses;

•· Pain and suffering;

•· Lost or damaged limbs;

•· Permanent disfigurement;

•· Mental anguish;

•· Impairment and

•· Loss of quality of life.

In addition to the above damages, a diver under the Jones Act would be entitled to dollar-for-dollar compensation for lost earning capacity. For example, if a diver was injured severely enough to put an end to his offshore career, that diver would be entitled to seek the amount that he would have made had he continued working until the expected retirement age for divers.

On the other hand, under the LHWCA, the same diver would be entitled to recover only his medical expenses and an amount consistent with the compensation schedule found in the Act. In essence, the injured diver would only be entitled to recover 66 and 2/3 % of his average weekly wage for a period not to exceed 6 years.

As anyone can see, the Jones Act is much more favorable than the LHWCA when it comes to compensation. If you or a loved one has been injured offshore, contact the maritime trial lawyers at Fitts Zehl, LLP today for a free consultation. The experienced personal injury attorneys at FZ have earned more than $150 million dollars in verdicts and settlements for their clients over the past two years alone.

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Commercial Diving: Risks and Dangers at Sea
Posted by: rzehl
January 12, 2010

Commercial divers are essential to the oil and gas industry's operations in the Gulf of Mexico. Without qualified personnel to physically carry out complex tasks beneath the surface of the ocean, the entire American oil and gas industry would grind to a halt. Unfortunately, even though they are indispensable to the work of oil and gas producers, offshore divers still run the risk of being wronged by their employers following an on-the-job injury or illness. If you or someone you love has been injured in a commercial diving accident, contact the experienced Texas Jones Act lawyers at Fitts Zehl, LLP today for a free consultation. A commercial diver may qualify as a Jones Act seaman as long as he is assigned to, and contributes to the overall function of, a particular vessel or fleet of vessels in navigation. This would allow the diver to sue his employer for any negligence in connection with his injury. Further, if a diver is injured by faulty or defective breathing equipment, he may also have a claim against the manufacturer. Unfortunately, freelance divers who move from ship to ship may have a harder time establishing a connection to a particular vessel and, as such, may not qualify for seaman status under the Jones Act. Freelance divers will instead be covered by the less favorable Longshoreman and Harbor Workers' Compensation Act (LHWCA). Under the LHWCA, an injured non-seaman will receive compensation based upon a set schedule found within the Act.

Each and every day, commercial divers face difficult, potentially life-threatening situations at sea. A few dangers to be aware of include:

•· Negligence - When a diver is underwater, he relies on those around him for safety. The negligence of a captain, crew member or employer can easily place a diver's life in jeopardy. Without a well-trained, attentive support team, the diver is at the mercy of the ocean.

•· Soft-Tissue Injuries - Although not as common today thanks to improvements in equipment and techniques, divers still run the risk of soft tissue injuries resulting from exposure to water pressure at depth. Excessive pressure can cause serious sinus or ear pain, leading to panic and even death in extreme cases.

•· Decompression Sickness - Rapid changes in barometric pressure, caused by ascending or descending too quickly, can cause the formation of painful bubbles within a diver's body. This condition, known as "the bends", is potentially life-threatening and treatment usually requires the use of a decompression chamber.

•· Skin Irritation - The ocean is home to a variety of marine life, both flora and fauna, that can be dangerous to divers. Even worse are the man-made hazards that may be present in the water including benzene and other caustic chemicals associated with oil and gas production.

•· Hypothermia - Exposure to frigid ocean temperatures can cause hypothermia in a matter of moments if a diver is not properly protected.

In an effort to promote safety, every single person involved in a diving project, from the diver to the vessel operator, must comply with the Diving at Work Regulations (1997). These regulations are not hard and fast rules. Instead, these regulations simply require the employer to risk assess each individual's role in any dive project so that the proper precautions may be taken to ensure safety.

Any company that commissions a dive project has a duty to ensure that the diving contractor is certified, as well as competent, to perform the required tasks. The company is also responsible for locating, identifying and informing the divers of any potentially dangerous obstacles, contaminated water or other hazards that may pose a problem. In the event of an emergency, the company is required to provide support in order to minimize the risk to life.

The diving contractor can ensure group safety by carefully preparing the dive plan and effectively communicating it to the other members of the project. Also, by inspecting any and all equipment to be used in the dive, the diving contractor can reduce the chances of a catastrophic equipment failure while submerged. Thorough record-keeping will also help by indicating what exactly has and has not been done in preparing for a dive. It is important that each member of the dive project keep his or her own written records of what takes place for future reference. The Jones Act trial lawyers at Fitts Zehl, LLP have the knowledge and experience necessary to represent you. We handle clients from throughout the Gulf Coast region including Texas, Louisiana, Mississippi and Florida. Contact us today for a free case evaluation.

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