Commercial Divers: Jones Act or LHWCA?

Posted by: rzehl
January 27, 2010
Topic: The Jones Act

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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