Friday, June 15, 2012

If you want to be a seaman, get in the boat!

This weekend is a big celebration of the 200th Anniversary of the War of 1812, here in Baltimore. It's a regular "Sailabration," with ships from all over, and lot's of self important people "speechifying" down and around Fort McHenry. All this fuss put me in a nautical mood, and I have always enjoyed maritime law more than any other area of my practice, so what better way to celebrate all those boats downtown than a few lines about some maritime law?

The Maryland Court of Special Appeals took a rare cruise into maritime law, launching the Dize v. Association of Maryland Pilots decision into the big pond of state court case law. Mr. Dize contracted silicosis of the lungs after his employer assigned him to sandblast the hull of a pilot boat owned by the Association of Maryland Pilots. To recover for his injuries from his employer, Mr. Dize sued in the Baltimore City Circuit Court (just a stone's throw from the Inner Harbor and the Chesapeake Bay). He lost on motion in the trial court, and he lost again, on appeal.

Now, it's not unusual for an injured worker to seek recompense from the boss. What is unusual in this case was Mr. Dize choosing to call him self a "Jones Act seaman," rather than a "longshorman," or just a regular 'ole "employee."  There's a difference, you see. He was seeking classification that has traditionally been granted our most imperiled maritime workers, a classification that would not have capped his recovery the way regular joes are limited by state or federal worker's compensation acts (you've heard the stories of scheduled injuries, and "what's a finger worth" after a dismemberment). The Jones Act seaman sues his employer for negligence, without the limitations of any scheduled recovery.  AND he gets to claim a daily stipend, called "maintenance and cure" even before he's won the case.  AND some contributory negligence on the part of the injured employee only reduces his recovery, it is not a complete bar, like it is in Maryland state law (at a recent Law Club meeting, I learned that Maryland is now in the minority of states where any amount of contributory negligence is a complete bar to recovery..that's another post for another day).

The federal "longshoreman," like the state worker, has limited recovery under the federal Longshore and Harborworker's Compensation Act. So, it's good to be a Jones Act seaman. I've litigated in all three areas, and Jones Act cases are, by far, the most fun (excluding the injured fellow, who usually would rather not be involved). I've learned so much cool stuff from crawling around vessels, including freighters, container ships, tugs, pilot boats, crab boats, and container cranes in Jones Act cases.

About 100 years ago, Congress created the Jones Act to protect the brave folks plying the high seas to bring us all those foreign goods we so deserve, called the Jones Act. This gave special protection to seafaring men and women injured in the service of our merchant fleet. After all, where would we be without our vanilla beans from Madagascar, or french wines, or bat guano from South America (really, look it up...Baltimore's port was built on this stuff!  In 1887, one island near the Dominican Republic shipped 462,000 tons of the stuff scraped out of 22 caves! And if you don't believe me, look at these 1899 log books, showing large tonnages of the stuff dropping on Baltimore's docks.) These guys deserve special protection.  After all, here's just a partial list of the bad stuff that can happen,compiled by another maritime lawyer:
    • Loss of footing. Surfaces on any vessel may become slick due to exposure to ocean spray, rain, humidity or wet lines hauled aboard. When the ship is not properly equipped with non-slip surfacing that is maintained, these areas present a fall hazard that can and often do result in serious injury.
    • Nets, lines and rigging. Rope, when not properly handled, is extremely dangerous. Feet and limbs can become entangled causing a fall or worse.
    • Shifting cargo. When cargo is not properly secured, the movement of the ship can cause it to shift, creating the potential for a seaman to be struck or crushed.
    • Lack of adequate railing. All stairwells and even some walkways require railing in order to allow workers to safely navigate them in high seas.
    • Fall from height. Most vessels and offshore platforms have multiple stories. Improper railing, inadequate flooring or lack of safety measures such as improperly secured harnesses can result in a nasty fall.
    • Fires and explosions. Ships and offshore drilling platforms require some heavy machinery to function; when sparks ignite, especially when combined with the occasional gas leak, workers can be burned by flame.
    • Chemical burns. Contact with harsh chemicals due to improper training, incorrect storage or spills can cause serious and painful burns.
    • Overexertion. Everyone has an idea of the limits of his or her own strength. Seamen are regularly asked to perform tasks that push those limits. When tasks go beyond the limits of physical endurance or strength, muscular and skeletal injuries can occur that may permanently damage a seaman’s ability to make a living.
    • Decompression illness (DCI). Commercial divers execute extremely technical dives at extreme depths. These dives must be planned and executed exactly in order to avoid DCI (or “the bends”). When equipment fails or planning goes awry, divers are put in serious danger.
    • Struck by a falling object. Cranes move large loads around barges, vessels and platforms. When cranes collapse or loads are improperly secured, workers on the deck below are in serious danger of being struck by the falling cargo.
    • Malfunctioning equipment. Be it large machinery such as engines, cranes or drills, or hand held power tools such as saws or blowtorches, every maritime company has an obligation to ensure equipment stays in good working condition and that all workers are trained on its proper use. When machinery malfunctions, injuries ranging from cuts or burns to amputations may result.
    • Improper supervision of loading and unloading. Longshoremen do much of the roll on/roll off operations, but seamen may assist in the process. High vehicular traffic and the coordination of the movement of large loads and containers create a number of dangers including being struck by a vehicle or load. These operations must be well supervised and coordinated in order to protect workers who are focused on a specific task.
    • Electrocution. Exposed wiring, improper insulation and wet surfaces can lead to electrocution ranging from mild to severe.
    • Radiation. Sealed and unsealed radioactive substances have a myriad of uses such as in cementing operations and density gauges. Exposure to an excessive amount of radiation can lead to radiation sickness, a serious condition requiring medical attention.
    • Scaffolding collapse. When incorrectly constructed, scaffolding may collapse, causing injury to those upon and around the scaffold. Either a fall from great height or being struck by falling objects can lead to injury or death.
    • Release of hydrocarbons. Hydrocarbon release can happen in liquid or gas form, both of which create explosion and fire hazards due to their flammable nature. Hydrocarbon inhalation can also cause pulmonary and neurological injury.
    • Vessel collision. The seas are a busy place and vessels will on occasion collide. This presents a danger to seamen whether through the force of the impact or resultant complications such as fires or chemical spills.
    • Getting caught in equipment. Winches are a good example of this potential hazard, as the winch drum can potentially snag body parts that get too close. Tasks that involve dangerous interaction with equipment or a lack of safety training, protocol and tools can lead to serious injury such as broken bones, soft tissue injuries or amputation.
    • Improperly inspected enclosed spaces. Oxygen deficiency or flammable or toxic atmosphere can all occur in enclosed spaces aboard vessels. Before working in these areas, they must be inspected to ensure that the workers are not in danger.
    • Falling overboard. A fall overboard can cause serious injury or death. The impact of the water is sometimes enough to render a person unconscious, leading to drowning. Non-fatal complications could arise from the fall including concussion, broken bones, spinal injury and hypothermia, not to mention the accompanying mental anguish.

This partial list should make it obvious why Congress gave these folks the right to sue their employer in negligence, if they could demonstrate their "seaman" status.  It is dangerous work.

But Admiralty and Maritime lawyers know all that, it's old hat. It's the fact that this decision boiled up out of the depths of Baltimore's Circuit Court that makes it interesting to me. You see, maritime cases are mostly filed in the United States District Courts. Jurisdiction over most anything dealing with international trade and commerce has drifted to the federal courts....except for the really cool "savings to suitor's" clause in the United States Constitution that guarantees certain claims for injury can still be brought in state court, at the sole election of the injured employee. It's rather empowering for the little guy. And where every other state court case that has related federal claims can be "removed" to federal court, the Jones Act case cannot. Chalk one up for the injured guy's forum selection.

And to make Mr. Dize's case even cooler, the Maryland Court of Special Appeals took some time to analyze U.S.Supreme Court law about what constitutes a "seaman." In a court that is normally swamped with criminal appeals of right from the entire state's trial court system, the law clerks must have been fighting over this one.

So what's the case hold?  Does it matter? Well, if you're injured while working on, or in support of a vessel, it sure does.  Maryland clearly adopted the Supreme Court's 30% rule, as described in Chandris v. Latsis.  That means roughly 1/3 of your time must be spent working on the boat if you want to earn Jones Act seaman status. The Supremes marked this off as a "rule of thumb," but anyone claiming status who spends less than 30% of his work time on the boat has to show a darn good reason to depart from this percentage.  One example that might work (it didn't for Mr. Dize) is the desk employee newly transfered to a vessel who is injured almost immediately in his new duties. He would not be able to demonstrate his Jones Act status using the 30% rule, but the nature of his recent assignment might save him from strict application of the rule.

And now I really want that Grady White I've been day dreaming about!  See you on the Bay!