Clarification of Answer by
tutuzdad-ga
on
09 Dec 2005 17:49 PST
STOP THE PRESSES! I?m glad you asked me to take a second look at this
research because we?re both going to learn something new here today
that we didn?t know before. It appears that ? statutorily speaking -
NEITHER the Jones Act nor the LHWCA are relevant to your situation and
I?ll tell you why:
I took a much deeper look at the Jones Act and here is what I learned:
Jones Act coverage (and your ?seaman? status) depends not on the
place where the injury is inflicted, but on the nature of the seaman's
service, his status as a member of the vessel, and his relationship as
such to the vessel & its operation in navigable waters. A seaman is a
member of the crew whose involvement is instrumental in the navigation
or operation of the ship. According to Title 46 of the US Code
transitory or sporadic Land-based maritime workers do not become
seamen simply because they happen to be working aboard a vessel when
they are injured.
The Jones Act (The Merchant Marine Act) provides seamen with the
ability to seek benefits known as "maintenance and cure" when they are
injured as a result of their employer's negligence while working on
U.S.-flagged vessels. ?Although the Jones Act protects seamen, it is
not the same as workers' compensation. It does not require payment
regardless of fault. In order for a worker to recover under the Jones
Act, a worker must prove some negligence or fault on the part of the
vessel's owners, operators, officers, and/or fellow employees or by
reason of any defect in the vessel, its gear, tackle, or equipment.
The Jones Act provides an injured seaman a remedy against his or her
employers for injuries arising from negligent acts of the employer or
co-workers during the course of employment on a vessel. This means
that the employer must do something unreasonable or fail to perform a
reasonable act that would have prevented injury in order for the
seaman to win his claim Claims brought under the Jones Act can also
raise claims against a vessel's owner that a vessel was unseaworthy.?
GUIDES: JONES ACT
http://www.cargolaw.com/guides_jones_act.html
The operative provision of the Jones Act is found at 46 U.S.C. 688(a),
which provides:
?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 to trial by jury, and in such action all statutes
of the United States modifying or extending the common-law right or
remedy in cases of personal injury to railway employees shall apply. .
. .?
I then went to take a much closer look at LHWCA, and here's what I
found out - Now, the Longshore and Harbor Workers' Compensation Act
covers injury and disability that occurs in areas adjoining US
waterways, *BUT* the adjoining areas specifically mentioned in Title
33 of the US Code are probably not (on second look) the types of
places you had in mind when you asked your question:
TITLE 33 NAVIGATION AND NAVIGABLE WATERS
CHAPTER 18
LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT
§ 903. Coverage
(a) Except as otherwise provided in this section, compensation shall
be payable under this Act in respect of disability or death of an
employee, but only if the disability or death results from an injury
occurring upon the navigable waters of the United States (including
any adjoining pier, wharf, dry dock, terminal, building way, marine
railway, or other adjoining area customarily used by an employer in
loading, unloading, repairing, dismantling, or building a vessel).
US DEPARTMENT OF LABOR
http://www.dol.gov/esa/regs/compliance/owcp/lhwca.htm#903
So, having said that, as this United States Department of Labor Law
Library site clearly confirms, you (in the situation you described)
would best be covered under the state Worker?s Compensation rather
than Jones or LHWCA. You will note that this information comes
directly from the guide used by Judges in determining the efficacy of
LHWCA claims ? you won?t find a more authoritative source than that.
In the opening paragraph of the guide the handbook says:
?When considering the concept of "coverage" under the Longshore and
Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901 et. seq.,
it must be kept in mind that employment is best thought of as a linear
continuum with three major groupings. First, there will be situations
where the employment will not be considered "maritime" at all, and
therefore, not covered under the LHWCA. (Such employment would more
properly be covered under a state workers' compensation system.)
Second, there will be the situation where the claimant is a
longshore/harbor worker or other "maritime" worker and, thus, is
clearly covered under the LHWCA. Third, there will be situations where
the employment is maritime in nature, but the worker is more properly
classified as a seaman attached to a vessel and entitled to a recovery
under the Jones Act (Merchant Marine Act). 46 U.S.C. § 688.?
United States Department of Labor
Office of Administrative Law Judges Law Library
JUDGES' BENCHBOOK:
Longshore and Harbor Workers' Compensation Act
http://www.insuremarine.com/WC/DOLlongshore.html
Your situation is unique and difficult to research; it?s not something
that comes up regularly ? at least not in my circle. I apologize for
any confusion or inconvenience my error may have caused you but, as I
said, I too learned something new on this subject today. I won?t soon
forget it.
Regards;
Tutuzdad-ga
,
1 Comment
)