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1. No L&I (workers’ compensation) for People Who Work Over Water
As soon as your work is away from shore, on any so-called “navigable waterway”, state law stops and you come under the federal maritime law. That means that you don’t get state workers’ compensation (with some exceptions) if you are injured or taken ill on a dock or a boat. If your injury occurs on a dock or in a shipyard, compensation comes from the Longshore and Harborworkers’ Compensation Act, administered by the U.S. Dept. of Labor. If you become ill or are injured while working on a boat as part of the crew--including processors on fish factory ships--you must go through the legal system to get compensation, the same as if you were injured in a car crash.
Crewmembers on vessels are “seamen” in the eyes of the maritime law, and are compensated as such for illness or injury. Basic, no-fault benefits are called maintenance and cure. If the illness or injury is caused by someone’s negligence--other than your own--you are also entitled to have a jury decide the fair amount of your compensation, as opposed to the fixed schedules used by L&I (Washington Department of Labor & Industries) and for Longshore benefits. These remedies will be explained in later sections of this outline.
2. Maintenance for Seamen
Maintenance is a daily stipend to use for the bare-bones necessities of living while receiving medical attention. Maintenance is a substitute for the free room and board the seaman would have received aboard the ship, boat or barge had the seaman not been injured or taken ill. It lasts until the seaman is at “maximum cure”, or as good as one is going to get.
The daily rate of maintenance is usually stated in the contract of employment--typically $20-$30/day for fishing boats and fish factory vessels. If the seaman can prove that he or she cannot pay for the basic necessities of living--basically the cost of rent or mortgage, utilities and food--on the contractual rate of maintenance, it is possible to force the employer to pay more. That requires receipts or other proof of basic living expenses and, for some employers, requires that you get a lawyer to help you.
3. Cure (medical bills) for Seamen
The maritime law is more generous than state-based systems of workers’ compensation when it comes to what ailments are covered under the doctrine of maintenance and cure. This is true even though the monetary compensation is less generous—at least as far as no-fault benefits (maintenance and unearned wages) are concerned. Any illness or injury that manifests (is discovered) while the seaman is in the service of the vessel—even cancer or tuberculosis—is covered.
In addition to medical bills, “cure” includes expenses associated with obtaining medical attention such as transportation expense and, if needed, interpreters.
Seamen receiving medical attention can choose their own doctors and don’t have to go to the doctor chosen by the employer’s insurance adjuster.
Like maintenance, cure lasts until the point of maximum cure.
4. Unearned Wages for Seamen
The doctrine of maintenance and cure includes “unearned wages,” a very limited no-fault wage-loss benefit. Unearned wages are paid only to the end of the pay period or contract of employment in effect at the time the seaman was injured or taken ill.
To get compensation for wage loss beyond the pay period or contracted length of employment, the ill or injured seaman must prove fault on the part of the vessel owner. This will be discussed in the next section.
5. Jones Act Negligence and the Doctrine of Unseaworthiness (an unsafe workplace)
To get more than maintenance and cure, the seaman must prove that it was the employer’s fault that the seaman got injured or was taken ill. To prove fault, the seaman must show that the injury or illness was caused by someone else’s negligence, or that the vessel was “unseaworthy” (unsafe) and that the unseaworthy condition caused the injury or illness. Once the seaman proves liability (fault), the seaman is entitled to compensation for future wage loss, pain, suffering and emotional distress.
If the seaman doesn’t settle his or her claim with the insurance company, a judge or a jury will determine at trial whether the employer/vessel owner is liable for the injury or illness and, if so, what is a fair amount of compensation for the seaman.
6. Alaska Workers' Compensation Versus Compensation Under the Maritime Law
Some fish processors on factory ships in Alaskan waters are both "seamen", with rights under the general maritime law as described above, and have coverage as workers under Alaska state law. The processor must choose between these two systems of compensation when injured on the job. The choice involves complicated factors that atre different for each individual and the injury involved. When processors on factory ships are put into the Alaska Workers' Comp. system, they should seek legal advice immediately.
7. Longshore Benefits
Workers in shipyards and on the docks are compensated for injury under a federal workers' compensation system called the Longshore and Harborworkers Compensation Act (LHWCA). Benefits under the LHWCA are more generous than Washington's L&I compensation.
The lines separating federal maritime benefits (for seamen), LHWCA (for dock workers), and Washington L&I benefits (for workers on land) are fuzzy. For example, take the situation of a day-labor agency dispatching temporary workers to a dock where a fishing boat is tied up, and are directed to go aboard and do jobs normally performed by the crew. If one of the day-laborers got hurt on the job, should the worker be compensated as a seaman, a harborworker, or worker on land under Wash. L&I? Generally, injury benefits improve with the distance from land. Remedies for seamen are the best (when fault on the part of the employer can be proved), and the worst for L&I workers. In cases where the the vessel owner cannot be blamed for the injury, LHWCA benefits are the most generous.
By: John Merriam
Last Updated: October 26, 2012 - 5:16pm