Commercial Fisheries News - May 2005 Back to Commercial Fishing Links
Maritime Law and Commercial Fishing
I have deep respect for anyone who earns their living on a commercial fishing vessel. On a daily basis, vessel owners
and crew members work long hours and risk their lives facing hazards unlike those encountered on land. It is little
wonder that the rights of commercial fishermen, as well as other marine workers, should be governed by laws and
concepts unique to the maritime industry. These include the Jones Act, unseaworthiness, product liability, and other
elements of maritime law.
I wrote this piece so that someone without a legal background could read it and walk away with a working
understanding of the law in this area. Since the Jones Act is the most well known of these laws, it’s a logical place to
start. The Jones Act outlines the rights of “seamen” injured in the course of their employment. A seaman can be the
mate on a dragger, engineer on a tugboat, or steward on a cruise ship.
To qualify as a “seaman”, the employee’s duties must contribute to the function of the vessel or to the
accomplishment of its mission, and the seaman must have a connection to a vessel in navigation (or to an identifiable
group of vessels) that is substantial in terms of both its duration and its nature. This definition comes from marine
case law (Chandris, Inc. v. Latsis, 1995). However, think of “seaman” as a crew member…for the scope of this article,
that will do.
The Jones Act provides an injured seaman with two categories of damages. The first category is economic damages and
includes lost wages, living expenses, and medical expenses. The second category is non-economic damages and includes
pain and suffering and mental anguish.
Negligence is an important element of the Jones Act. We are all familiar with the basic idea of negligence…the most
vivid illustration being the banana peel waiting to trip the unwary pedestrian. In lay terms, negligence means
In legal terms, negligence means a departure from a required standard of care resulting in damages. “Standard of
care” is a fancy word for “duty”…a duty to act in a way that would not subject a foreseeable victim to an unreasonable
risk. It’s simpler than it sounds. For a bus driver, “standard of care” means knowing how to apply the brakes without
sending passengers through the windshield. For a chief engineer on a container ship, it means knowing how to isolate
the power to a bilge and ballast pump so that a mechanic will not be electrocuted when servicing the motor.
I took the time to define negligence because of its importance in the operation of the Jones Act. The Jones Act
provides non-economic damages of pain and suffering only if there was negligence. Living expenses and medical bills
(maintenance and cure) are economic damages and do not require a showing of negligence. Cure covers medical
expenses until the seaman reaches maximum medical recovery. It includes hospitalization, physician care, physical
therapy, rehabilitative medicine, prescription, etc. Maintenance covers expenses that would enable a seaman to live on
land in the same manner in which he or she lived on the vessel. It is a low amount in the range of $25 to $30 per day.
A Jones Act claim must be brought within three years of the accident or event giving rise to the injury. Additionally,
the fact that the seaman’s actions contributed to his injury do not serve to disqualify his claim. His own contributory
negligence would, however, serve to reduce an otherwise larger award.
Under the concept of unseaworthiness, a vessel owner is held by general maritime law to owe a seaman a warranty that
the vessel is a seaworthy vessel. Unseaworthy doesn’t necessarily mean on the verge of sinking. Unseaworthy means
the vessel is not reasonably fit for its intended use.
The entire vessel need not be unseaworthy, only the part that caused the seaman’s injury. Like a Jones Act claim, an
unseaworthiness claim must be brought within three years of the accident or event giving rise to the injury. An
unseaworthiness claim is brought against the vessel owner, whereas a Jones Act Claim is brought against the
Death on the High Seas Act
The Death on the High Seas Act provides a remedy to the personal representative of a seaman who dies as a result of
negligence or vessel unseaworthiness, or other wrongful act on the high seas. High seas means waters beyond three
miles from the shore of any state, District of Columbia, or territories or dependencies of the United States. Personal
representative can include the decedent’s wife, husband, parent, or child. An action may be brought against the vessel,
person, or corporation which would have been liable had the death not occurred.
Longshoreman and Harbor Workers Compensation Act
The Longshoreman and Harbor Workers Compensation Act (LHWCA) covers employees injured in the course of
maritime employment on navigable waters who are not seamen. It is essentially a workers’ compensation system and
covers shoreside employees, including welders, mechanics, and cargo handling personnel, among others. If the
employee was a regular member of the vessel crew (thus being a “seaman”), or the sole cause of injury was the
worker’s intoxication, or the sole cause of the injury resulted from the worker’s deliberate attempt to injure himself
or other person, coverage would be disqualified.
Product liability cases arise frequently in the news, from SUV rollovers to side-effects of prescription drugs such as
pain-killers or anti-depressants. Product liability is the legal theory that applies to situations where a defective product
causes injury. The injured person needs to show that the product was defective in that it did not perform its function
safely as would ordinarily be expected, or that it could have been made safer in an economical manner. Something
could be considered defective if it was defectively manufactured, defectively designed, or if it did not provide adequate
warnings as to its risks.
It would be a nicer world if we didn’t have accidents and injuries. Unfortunately, accidents occur and people are injured
at sea, and it’s important to follow proper procedure for the best interests of everyone involved. Accidents should be
documented with a written report, photographs should be taken, statements should be obtained from witnesses, and
qualified follow-up medical care should be sought on shore with an independent physician.
Keep in mind that other legal issues can enter the picture, such as wrongful termination, assault, intoxication,
limitation of liability, etc. Things can become complex. However, I wanted to make this outline clear and concise. I
wanted to present basic marine law governing the rights of commercial fishermen. As such, this is a fairly basic
primer. In situations where you aren’t sure of your rights, it is advisable to seek the advice of an attorney.