Date: Wed, 31 Dec 1997 20:46:05 GMT Server: Stronghold/2.1.1 Apache/1.2.4 Last-Modified: Mon, 31 Mar 1997 23:04:25 GMT ETag: "ed183-22ab-334042f9" Content-Length: 8875 Accept-Ranges: bytes Connection: close Content-Type: text/html X-Pad: avoid browser bug George & George - Admiralty

ADMIRALTY AND MARITIME LAW - -

LAWS OF THE SEA, SHIPS VITAL TO BATON ROUGE AREA RESIDENTS AND BUSINESSES

By James A. George

Admiralty and maritime law has its roots in the earliest forms of commerce. It is one of the oldest bodies of law, believed to have originated in the countries which surrounded the Mediterranean Sea in response to disputes and problems which arose over the transportation of goods over water. Special courts and rules continued to develop over the years, eventually reaching the United States via its English ancestry. The Founding Fathers recognized its importance and made specific reference to it in the United States Constitution in Article III, granting the Federal Courts authority in "all cases of admiralty and maritime jurisdiction." While Admiralty and Maritime Law was present from the very inception of this country's judicial system, the law has never been stagnant. Rather, constant change and a considerable amount of flux has been the norm, a point dramatically illustrated by the significant decisions of the United States Supreme Court over the past few years in this field. The development of the Jones Act, a branch of Admiralty and Maritime Law, which can be analogized to a federal worker's compensation act for seamen similar to the worker's compensation statutes which exist in many states, is one example. At the same time, traditional General Maritime Law has seen the development of the claim for unseaworthiness of a vessel. Both of these areas can and do have far-reaching effects on American and international businesses, and have a significant impact on the citizens and commerce of a maritime state such as Louisiana.

Jones Act

While parallels can be drawn between the Jones Act, 46 U.S.C.A. Section 688, and state worker's compensation statutes, one clear and fundamental difference exists. It provides a seaman a cause of action against his or her employer for injury arising from the negligence of fellow seamen. For many years, the burden of proof for a showing of negligence was described as "featherweight" and the seaman only had to show the "slightest negligence" on the part of the shipowner. That rule was changed, however, on February 28, 1997, by a decision of the United States Court of Appeal for the Fifth Circuit in New Orleans, and the seaman must now prove "ordinary negligence" - - a much heavier burden of proof. Gautreaux v. Scurlock Marine, Inc., ____F.3d ___ (5th Cir., 1997)(en banc). Congress patterned the Jones Act after a similar statute dealing with railroad workers the Federal Employers Liability Act (FELA), 45 U.S.C.A. Section 51, et seq. As Admiralty and Maritime Law did not provide for this originally, a unique situation is created by the Jones Act in which the employer of a seaman can owe a duty to provide both maintenance and cure (similar to worker's compensation benefits) and, at the same time, be subject to a negligence suit for those very same injuries. State worker's compensation laws do not allow this scheme of recovery, but permit an injured worker to be entitled only to the benefits allotted under the statute's scheme. Determining who qualifies as a "seaman" under the Jones Act is very important and subject to constant argument and debate. Naturally, many employees injured in the course and scope of their employment desire to qualify under the Jones Act in order to have an additional remedy against their employer.

Several recent United States Supreme Court decisions, beginning with McDermott International, Inc. v. Wilander, 111 S.Ct. 807 (1991), afford an expansive definition of the workers qualified as "seamen" under the Jones Act. In the Wilander case, the Supreme Court held that seaman status was not dependent on the employee performing duties which contribute to the vessel's navigational or transportation function, two requirements which earlier Supreme Court decisions seemed to impose. Shortly thereafter, in Southwest, Inc. v. Gizoni, 112 S.Ct. 486 (1991), it continued the expansive trend in the redefining of the persons qualified to proceed under the Jones Act as "seamen." In that opinion, the High Court held that for individuals working on floating platforms with no power, means of steering or navigational aids could qualify as seamen under the Jones Act. More recently, in Chandris, Inc. v. Latsis, 115 S.Ct. 2172 (1995), the Supreme Court ruled that the person's connection to a vessel, or an identifiable fleet of vessels, must be substantial in both duration and nature.

Unseaworthiness

A ship or vessel is a place where the seaman will live and work - - sometimes for months at a time. Thus, it is usually understood that the vessel owner "warrants" or owes a duty to the seaman that his ship meets certain standards. A vessel is "seaworthy" if it is reasonably fit for its intended use. This duty has been interpreted by the United States Supreme Court as being absolute, and does not require any type of fault on behalf of the shipowner. What renders a vessel unseaworthy is not easily definable and is a question with which many courts have struggled over the years. In its simplest form, however, it relies on a reasonableness test. For example, oil film on the deck of a vessel used to ship petroleum products may not constitute an unseaworthy condition. But the same oil film on the deck of a vessel used to ship grain may constitute an unseaworthy condition. The claim for unseaworthiness can also arise when a ship does not have adequate equipment on board or when the number of crew members on board is too small to adequately operate the ship.

The unseaworthiness claim may be brought together with a claim under the Jones Act, and the unseaworthiness duty is owed by the shipowner or operator, while the Jones Act claim is brought against the seaman's employer.

Personal Injury and Wrongful Death Claims

The elements of damage sought by the injured seaman either under a claim for unseaworthiness or under the Jones Act (or both) are similar to those usually sought in a "land tort" suit. For example, pain and suffering, past and future; mental anguish and emotional distress; lost wages, past and future; medical bills, past and future; and lost enjoyment of life. One important area of damages no longer recoverable under either unseaworthiness or the Jones Act is the assessment of punitive damages, damages for the purpose of punishing the responsible party, as such damages have recently been ruled unavailable in this type of case. Although the law remains unsettled at the present time, they may be recoverable in certain other types of maritime cases if the plaintiff can prove the defendant's conduct was "willful" or "wanton." Similarly, Louisiana state law does not recognize a plaintiff's claim for punitive damages except in very rare circumstances.

The claim for loss of consortium, generally understood as the loss of support and society, services, etc., arising out of the injury or death of a loved one is no longer available under the General Maritime Law in a claim for unseaworthiness or under the Jones Act. Miles v. Apex Marine, 111 S.Ct. 317 (1990). Under the Miles decision, non-pecuniary damages, such as loss of society (akin to loss of love and affection in Louisiana law), are no longer recoverable in maritime wrongful death cases.

Remedies unique in American law are provided by the large body of decisions and statutes collectively known as Admiralty and Maritime Law, and these laws affect citizens and business enterprises in our state to a very significant extent. Because of the impact of Admiralty and Maritime Law in Louisiana, it is hoped that this brief review of this area of the law will be helpful in advising residents and businesses in the Baton Rouge area of their rights and concomitant obligations under Admiralty Law.



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