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New York Maritime Law Blog

How long will you be paid under the Longshore Act?

Simply because you know that protections are in place to help you should you be injured doing maritime work at any of Manhattan's docks or ports does not necessarily mean that you should be completely free from worry about what might happen should such a thing ever occur. Equally as important as knowing that you are entitled to benefits under the Longshore Act is understanding how long those benefits will last. The answer to the latter question depends on the nature of your injury. 

According to the U.S. Department of Labor, the Longshore Act requires that you be paid 66 2/3 percent of your wage for the duration of your disability if you qualify as being permanently and totally disabled. If you suffer a total disability but its effects are believed to be only temporary, you are entitled to the same amount for the time period it takes for you to recover. 

When getting to work can be deadly

You do not need to be told how much life on an offshore oil rig differs from the one normally experienced in Manhattan. Having worked with many who have been injured during the course of such a career, we here at Tabak Mellusi & Shisha LLP can attest to the unique dangers oil platform workers face. Yet while you may not know it, the greatest risk you may encounter while doing such work may not be on the rig at all, but rather during your ride out to it. 

According to accident data compiled by the Centers for Disease Control and Prevention, the leading cause of fatalities related to offshore oil drilling is transportation accidents. Of the fatalities reviewed in this research, 75 percent were due to helicopter accidents (which may not be surprising, given that such vehicles are typically the primary method used to transport workers to oil platforms). Mechanical failures and bad weather were listed as the most common causes of such accidents. 

How do Jones Act benefits differ from workers' compensation?

Going to work every day in Manhattan (no matter the profession) can be difficult for anyone. Any number of challenges and risks could await you. Fortunately, you are typically able to draw some comfort from the knowledge that should something happen to you on the job, there are resources in place to help (such as workers' compensation benefits). You might face a heightened number of on-the-job risks when you work in the maritime industry. For injuries that happen while at sea, you can rely on protection through the Jones Act. Many in your profession may view workers' compensation benefits and those offered through the Jones Act as being the same thing. Yet are they? 

There are, in fact, a few distinct differences between Jones Act benefits and workers' compensation coverage. The most obvious is that the Jones Act only protects you while at sea, while traditional workers' compensation benefits are limited to workplace accidents that occur on land. Yet an even more important distinction is that workers' compensation coverage will typically only pay for expenses such as medical bills and rehabilitation services. Per the Jones Act statute (as shared by the Cornell Law School), you can actually bring a civil action against your employer to seek compensation for lost wages (or the loss of your income if you are unable to return to work). 

Buzzed boater charged in death of fiancee and daughter

The relative increase in space that boaters in Manhattan have on the water as opposed to what they find on the road when driving may contribute to a false sense of security. Not having to worry about avoiding other vehicles may prompt some to engage in reckless behavior that they otherwise would not. Excessive drinking or using controlled substances immediately before or while boating are two such examples. While many may not realize it, boating while impaired or under the influence can be just as dangerous as being in the same state while driving, and may easily produce devastating consequences

A recent case involving a family in Pennsylvania perfectly illustrates this point. The father allegedly smoked marijuana before heading out on to a local river with his fiancee and their daughter. Authorities say his destination was a campground up river, yet due to his unfamiliarity with the area, he did not know that there was a dam between the party and their destination. Their boat ended up striking the dam, and all three were thrown overboard. He was able to swim to shore, yet his fiancee and their daughter drowned. He is now facing multiple criminal charges stemming from the accident, including homicide by watercraft while under the influence. 

Is your ship ready for cold weather?

While summer is still in full swing, autumn weather is right around the corner. Conditions above deck will soon be brisk, and the risks of hypothermia are not to be taken lightly.

As the temperature begins to dip, be sure your ship has the right cold weather gear on board, whether it’s provided by the company or you bring it yourself.

The limits of maintenance and cure benefits

Given the risks associated with employment in the maritime industry, it is easy to imagine one who is injured at sea requiring an extensive recovery period in Manhattan before he or she is fit to return to work (that is, if he or she is indeed able to return to work at all). The financial losses that result from not being able to work for a significant period of time can be massive, yet in the case the of maritime workers injured while employed in the service of their vessels, maintenance and cure benefits are meant to mitigate them. 

Per definitions established by the U.S. Second District Court, those inured at sea are entitled to be treated and cured at the expense of the ship. Yet exactly how long does that entitlement last? The answer to that question may depend on the nature of the injury that leaves one needing maintenance and cure benefits. 

Examining expense coverage for dry dock injuries

When referring to "maritime injuries," most likely assume those to be injuries sustained by crew members while at sea. Yet vessels are not always at sea (or even in the water, for that matter). As many of those that we here at Tabak Mellusi & Shisha LLP have worked with can confirm, there are almost as many dangers associated with ships on land as there are when those same ships are at sea. Your interactions with ships on land are most likely to occur on dry docks. The question then becomes whether federal maritime regulations protect offer the same employee protections when a ship is in a dry dock. 

The Longshore and Harbor Workers' Compensation Act is designed to offer protections to those employed in the fulfilling the mission of a vessel. You are included in this group if you work on the vessel itself, or are employed doing longshore work, repairs, shipbuilding or ship-breaking. Because the Act covers longshore workers, its coverage area extends beyond navigable waters. According to the U.S. Department of Labor, that area includes adjoining piers, wharfs, terminals, building ways, marine railways, or any other adjoining area used for the loading, unloading, repair, building or dismantling of a ship. This would of course include dry docks. 

Are you covered by the Longshore Act?

The work being done by those employed at the docks of Manhattan and the rest of the U.S. is vital to the country's economic well-being. It is also recognized as having several inherent risks. Thus, federal laws such as a the Longshore Act have been enacted to protect you and others engaged in such work. The Longshore Act specifically offers financial assistance to help deal with the expenses related to your dockside injury. Yet one important element to understand prior to planning on receiving such assistance is whether you qualify for it at all. 

Per the Department of Labor, the Longshore Act covers those working upon the navigable waters of the United States as well as those who load and unload cargo, or who work repairing or constructing vessels. Not everyone, however, working on a dock may be covered under this law. The Act itself specifically excludes the following parties: 

  • Employees of clubs, camps, museums, restaurants, recreational outfits or retailers
  • Marina employees not specifically engaged in the construction or maintenance of the marina 
  • Aquaculture workers
  • Employees who build, repair or maintain recreational vessels or vessels less than 65 feet in length
  • Individuals employed by shipping companies to perform data processing and security or secretarial or clerical work

Proving a privity or knowledge

The recent sinking of a duck boat on a popular Missouri lake and the tragic loss of its passengers has brought heightened awareness to the issue of boating safety. When clients come to see us here at Tabak Mellusi & Shisha LLP following boating accidents, most claim to have assumed that the responsibility of ensuring boat passenger safety was that of a vessel's captain. It typically is, yet as was detailed in a previous blog post, the Limitation of Liability Act limits the amount of liability that can be assigned to vessel owners in such accidents. Yet what happens if negligence is proven on the part of a boat owner in an accident you were involved. 

Section 183(a) of the federal statute detailing the Limitation of Liability Act (as shared by the Cornell Law School) states that the limitation on liability only applies in cases where vessel owners are without a privity or knowledge of potential risks. In this context, "privity or knowledge" refers to potential dangers that were known or should have been known by boat owners. Take the example of the Missouri accident. Officials have confirmed that the vessel did have life jackets available, yet passengers were not required to wear them (one survivor of the incident even said that the boat captain told them they would not be needed). 

The Tragic Loss of the Duck Boat - Table Rock Lake, Branson Missouri

The tragic loss of the Duck Boat with 17 persons, including children, will trigger investigations by the National Transportation Safety Board and the Coast Guard. Civil litigation will follow, likely including a pro-active filing of the owner of the Duck Boat under the controversial Limitation of Liability Act (LOLA) 46 U.S.C. § 30506. This statute allows a vessel owner to petition a federal court to limit its liability to the post-accident value of the vessel. In this case the value of the Duck boat is zero. In such cases, the LOLA triggers a statutory floor increasing the amount of recovery to $420.00 per ton. To put this in perspective, the sinking of the 30,000-ton container ship EL FARO during Hurricane Joaquin resulted in a fund amount to about 13 million dollars. Since the tonnage of duck boats is relatively small, perhaps no more than 10 tons, the value of the limitation fund would be about $4,200.00 - a ridiculously insignificant amount to be shared by all the claimants.

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