The Federal Fifth Circuit Court of Appeals has recently held that an undocumented immigrant who is injured at work is not excluded from receiving benefits under the Longshore Harbor Workers Act. In Bollinger Shipyards v. U.S. Department of Labor et al., 2010 WL 1614594 (2010) an alien without proper working papers submitted a false Social Security number to obtain employment in a shipyard as a pipe fitter. Arguing that the undocumented worker was precluded from compensation benefits because he was ineligible to work in the United States, the employer argued that the injured worker was similar to a “car thief,” a “pirate,” or a “drug dealer” who was making money through “ill gotten gains.” The Fifth Circuit rejected the employer’s argument, affirming its prior decision in Hernandez v. M/V RAJAAN, and again declared that undocumented immigrants are eligible to recover workers’ compensation benefits under the Longshore Harbor Workers Act.
The United States District Court for the Third Circuit has ruled that land based commuter seamen, who eat and sleep ashore, have the same right to maintenance and cure as all other seamen. See Delaware River & Bay Authority v. Kopacz,2009 WL 3064708 (2009). The ruling explicitly stated that, in the Third Circuit, commuter seamen are entitled to maintenance benefits. The decision further held that the receipt of Social Security disability payments does not terminate the right to maintenance and that payments under a long term disability policy did not satisfy the employer’s maintenance obligation.
In the Delaware River Bay Authority case, the seaman was covered under the terms of a collective bargaining agreement. Under the terms of the collective bargaining agreement he was to receive full wages for 90 days following his injury and 60% of his wages under a long term disability policy following a lapse of 90 days. The collective bargaining agreement made no mention of the injured seaman’s right to maintenance and cure. Upon learning of the seaman’s receipt of Social Security disability payments, his employer demanded repayment of overlapping long term disability payments.
When seamen receive long term disability payments under an insurance policy funded by his employer, the question that must be resolved is, are these payments part of the seaman’s wage package. Where the long term disability payments may be characterized as part of the seaman’s wages, they will be deemed separate and distinct from the owner’s obligation to pay maintenance under the general maritime law. The absence of a contractual clause indicating the long term disability payments are in lieu of maintenance, those payments should not bar a seaman’s right to maintenance.
A housekeeper aboard a river boat casino and hotel has been ruled to be a Jones Act seaman by the Iowa Court of Appeals. The housekeeper fell on ice while taking trash out of the casino’s trash compacter. She sought workers compensation benefits under Iowa’s Workers Compensation Act. The Court held that because the floating river boat casino was capable of navigation, the housekeeper’s claim fell under Federal Maritime Law.
Relying upon the Supreme Court of the United States decision in Stewart v. Dutra Construction 543 U.S. 481 (2005), the Iowa Court found that the river boat casino “was capable of being used as a means of transportation upon water” and noted that the vessel need not be used primarily for that purpose. Although it was admitted that the river boat casino did not ply the waters of the Missouri River, there was no evidence that the river boat casino was not capable of being used as a vessel in navigation, and therefore had not lost its character as a vessel in navigation because it was not permanently moored. The river boat casino had a captain and mate and was capable of sailing within 90 minutes if it so chose. The fact that the vessel and the housekeeper did not regularly sail was not determinative of whether or not the floating casino was a “vessel in navigation.”
In most instances a crewman will receive greater benefits under the Jones Act than under State workers compensation acts. Seamen are entitled to maintenance and cure benefits, and where injured through negligence or unseaworthiness may obtain compensation for lost past and future wages, lost wage earning capacity, pain and suffering, and medical expenses.
Seamen working on charter vessels, cruise ships, and excursion vessels frequently receive tips in addition to their salaries. When crewmen are injured or become ill in the service of their vessels, under the General Maritime Law they are entitled to receive unearned wages until the end of the voyage. The length of the voyage may be determined by contract, or where there is no contract by the length of the season or by verbal agreements.
Tips received by crewmen on many of these vessels constitute a large part of the crewman’s salary. Under maritime law, passenger tips to crewmen should be included in calculating unearned wages. This very issue was addressed by the 11th Circuit Court of Appeals in Flores v. Carnival Cruise 47 F.3d 1120 (1995). Although the Court applied maritime law to this issue, in deciding the case the Court noted that State Workers Compensation Acts routinely recognize tips as part of workers wages. The Court held that tips are wages and that the seaman’s right to unearned wages should include the full amount of money to be paid to a seaman during a voyage.
When a seaman is injured or becomes ill while working aboard a vessel, receiving his wages for the length of the voyage that he would have been on but for his injury or illness is an important basic benefit. The maritime lawyers at Beard Stacey & Jacobsen are dedicated to protecting seamen’s rights, and getting seamen full and fair compensation for their injuries.
The United States Court of Appeals for the Ninth Circuit rejected a fisherman’s claim that a verbal agreement to fish the entire season was grounds for recovering “unearned wages” after he became injured. Fisherman Jesse O’Neal signed a contract to work for American Seafoods Company. In the “fine print “, the contract provided that the fisherman would be hired for one fishing voyage, to be renewed after each voyage. This was a surprise to O’Neal, and surely the rest of the crew, as they were told that they could work the entire season. During his first voyage O’Neal injured his neck and back, causing him to leave the vessel before the end of the season.
The fisherman sought “unearned wages,” which are “actual wages the seaman did not earn because of his injury or illness” during his contracted employment with American Seafoods. Maritime law requires employers to pay these unearned wages. The fisherman sought to recover his unearned wages for the entire season, claiming that American Seafoods had committed to employ him for the season. The fine print in the signed written contract, however, states that any contract extensions or terminations must be made in writing to be valid. Because of this contract provision, the Court ruled that American Seafoods only had to pay unearned wages for one voyage.
Fishermen and seamen should be aware of the provisions in their contracts. Employers try to limit any money they have to pay after an injury. For instance, the standard fisherman’s contract provides for $20-$25 in maintenance money, even though it is extremely difficult to pay for their room and board with only $20-$25 per day. Another example of the employer’s attempt to limit their obligation to the injured fishermen is illustrated in Jesse O’Neal’s case. Everyone on his vessel understood that, should they do satisfactory work, they would be employed for the season. If, in Mr. O’Neal’s case, the contract provided for employment for the season, then his “unearned wages” would be paid for that season – not just the voyage of injury. However, because Mr. O’Neal signed a contract with the “trip to trip” provision, then the employer could get away with paying only one voyage of wages.
Seaman and fishermen do not always work aboard vessels. Sometimes a seaman’s duties require him or her to perform shore side tasks. Unfortunately, injuries do occur to seamen ashore. Well established maritime law requires that the employer must provide the mariner with a safe work environment. Over the years, courts have wrestled with the scope of this duty when the seaman’s job require him or her to work while ashore.
Recently, a Washington State Court addressed the issue. In Acosta v. Aleutian Spray Fisheries, Inc., 2009 WL 1916070, plaintiff David Acosta was employed as a fisherman aboard the F/V Siberian Sea. As part of his duties, Acosta was sent to retrieve fiber-pallets from a warehouse not owned or controlled by Acosta’s employer, Aleutian Spray Fisheries, Inc. While attempting to pick up a pallet with a forklift, Acosta realized the pallet was broken. He then proceeded to transfer the bundles of fiber by hand. During this process, the top pallet from the stack behind Acosta fell on him, causing a back injury.
Acosta then brought a Jones Act claim against Aleutian under the Jones Act and General Maritime Law. The defendant, however, asserted Acosta could not prevail in his claim because the warehouse was not owned or controlled by Aleutian. Defendant further argued that Acosta should have inspected the warehouse for unsafe conditions.