Professional Racing Sailors and Workplace Injuries

Professional sailors work all over the world, often for vessels of various flags, owners of differing nationalities, and in locations that have no connection to the sailor, owner or vessel other than the fact that it is a racing venue.  Ocean racers spend significant time in international waters between countries.  In that context, general laws concerning workplace safety, workman’s compensation, negligence or employment law are not applicable.  This article will try to make sense of the protections and risks to a US citizen employed (or employing) as a professional sailor should he or she be seriously injured during employment. 

Any attempt at a quick analysis of this question immediately bogs down with the question of what law applies, and in facts that will be different in every case.  The results will be different if Turkish law applies than if it is the law of Florida: the results will be different if the Sailor is also the Master of the vessel. The results will change if the sailing is on a landlocked lake or international waters.  Getting any result will be difficult if the sailor dies at sea and the family must bring a case in another part of the world.  The only way to narrow all of these factors is to have a written contract, so this article will start with the question of what are the minimum terms that owners and sailors should agree to in establishing a professional relationship. 

Minimum Contract Terms

If parties want to make an agreement that will address every contingency, it is easy to end up with a very long and unwieldy document.  Sometimes this is necessary (the America’s Cup comes to mind), but it is probably not necessary for a week of sailing on the Med.  Here is a short list of terms that should be agreed to (a complete cut and paste email version that can be emailed is here
  ).  Vessels of greater than 75 gross tons are required under US law to have written, signed Articles of Employment.  (Gross tonnage is an indicator of a vessel's approximate volume and should be recorded on the vessel's Tonnage Certificate or Certificate of Admeasurement.  I am told that a race boat of 80 feet or more is likely to be approaching 75 Gross Tons).  Such boats should have a version of these terms signed by the Sailor and Owner or Master.  Failure to do so potentially subjects owner to a USCG civil fine of $5,000.

Terms

Parties to contract?

1. Owner/Employer: ____________________.
2. Sailor: ________________________.

How much?

3. The parties agree that the Sailor will be paid $_________ in U.S. Dollars per (choose one) day/week/month/other ____________.
4. Travel expenses: travel expenses to and from the vessel are the responsibility of the (choose one) Owner/Sailor.   
5. Other expenses will be treated as follows ____________________________.

Where and When?

6. Sailor is to join the vessel at (location) ________________ on (date) _____________ no later than (time) _______________________.  
7. Expected location of vessel upon discharge ______________________. 

How long?

8. The period of employment is expected to be from ________ to _________.

What job?

9. The parties agree that the Sailor will perform the regular duties of a ___________ on the Yacht _______________________.

Discipline?

10. If the Sailor is subject to special discipline such as fines or short rations, describe: ______________________________ (this term is required under the Jones Act – hopefully the answer is N/A).

Emergency Contact Info:

11. In the event of last minute change or an emergency:
    1. Sailor’s cell number _________________.
    2. Sailor’s next of kin (name) ________________ (phone) _____________. 

Choice of Law:

12. In the event of a dispute arising out of this contract, the Parties agree that the laws of Maryland, the Jones Act and the General Maritime Law of the United States apply and that any dispute will be heard in the State of Maryland in the United States.

Additional Terms:

13. The Parties have agreed to the following additional matters: _______________________________________________________

Lost Income, Pain and Suffering and Death On the High Seas

Traditional Maritime Remedies

Under traditional maritime law, lost income, pain and suffering and death were all things for which there was no financial recovery, at least against the vessel or the owner.  Break your back and suffer terrible pain?  Can’t work for a period of years?  Consigned to Davey Jones’ Locker?  Tough.  When you’re able to report for duty, let us know. 

Traditional maritime did (and does) require the owner to provide very basic remedies for the sailor – wages, maintenance and cure.  These are worth a quick explanation both for what they are and for what they are not:

+Wages: An injured sailor is entitled to his wages through the end of the voyage – the anticipated scope of the voyage should be set out in the Articles of Employment.  If the voyage is a 3 day regatta, then a sailor should get those days.  If it’s a slow trip around the world, the wages may be a little more meaningful.  If a sailor was scheduled for another regatta with a different employer on the following weekend, those wages would not be recoverable under traditional maritime law. 

+Maintenance: An injured sailor is entitled to a maintenance stipend for room and board for the duration of the injury.  This is NOT actual room and board – its room and board comparable to what a sailor could expect during the voyage.  We are not talking nice hotels and good restaurants – typical maintenance payments in the US are between $8 and $35 per day. 

+Cure: A sailor is entitled to health payments that will bring him or her to the Maximum Medical Improvement (“MMI”).  This is a real benefit to the sailor and real liability for the owner, albeit one that is typically covered under the P&I section of any yacht policy. 

Modern Statutory Remedies

In the United States, there are various remedies available to the sailor (or their dependents) that were not available under the traditional maritime law.  The Jones Act provides a claim against the owner or vessel for injury caused by unseaworthiness and negligence.  Most states (including Maryland) now have a cause of action for Wrongful Death (ie death caused by the negligence of another).  Federal law also provides a remedy for death offshore in the Death On the High Seas Act (DOHSA).  There are virtually unlimited fact patterns that would raise combinations of these claims, but a typical claim might be described as follows:

Jones Act Unseaworthiness

            An unseaworthiness claim is brought against the vessel (as opposed to the owner of the vessel individually), and alleges that there was a flaw in the vessel that caused an injury to the sailor.  Unseaworthy in this context means unfit for its intended use.  If the mast falls down and knocks a sailor in the head, this might result in an unseaworthy claim.  The sailor’s own negligence is a defense to the claim. 

Jones Act Negligence

            A negligence claim is brought against the owner, and alleges that the owner (or the owner’s agent such as the Captain) was negligent.  If the mast falls down, and the rigging had not been recently inspected, this could be a claim for negligent failure to inspect.  If the Master fails to keep a lookout, or there is a violation of the rules of the road (including the racing rules) this could form the basis of a negligence action.  The sailor’s own negligence could be a defense. 

Stateside Wrongful Death

            If a sailor dies in the navigable waters of a state of the United States, the estate may have a cause of action if the death was caused by some else’s negligence.  The specifics of such a claim could be dictated by state law or the Jones Act, depending on where it took place and how the estate’s attorney decides to proceed.  State law can differ widely, and in some cases there may not even be a state law claim for wrongful death.  Under the Jones Act, such a claim should be available.  The sailor’s own negligence would be a defense. 

Death on the High Seas

            Outside of 3 nautical miles, a crewmember that dies has a cause of action under federal law.  If the vessel is lost, however, the dependents would need to be able to show some negligence or unseaworthiness to overcome the vessel owners’ right to seek a limitation of liability. 

Bullet Points for Busy Professionals:

1. Crew contracts are strongly advisable, and essential if employment is outside US waters or it’s a boat over 85 tons admeasurement.
2. US owners and crew should agree to have disputes heard in the US.
3. Outside of US waters without a contract, local law or general maritime law will apply and results and accessibility to dispute resolution will vary widely.  
4. Owners liability to crew claims for injury or death during employment (even when not aboard) should be covered by the Protection and Indemnity (P&I) coverage of their Yacht insurance policy.  Owners and crewmembers should be sure that this is in place.
5. Traditional maritime law does not provide for lost future income if a sailor cannot sail future events, or for pain and suffering or wrongful death.  International law may or may not provide such claims.  Absent contract, availability will vary. 
6. If the sailor’s own negligence caused the injury, there may be no claims against owners beyond wages, maintenance and cure.  Sailors should take steps to insure against lost income due to injury.
7. Maintenance is usually only $8 to $35 per day – not nearly enough to support a reasonable lifestyle.  
8. In the event of a catastrophic loss in which the vessel is lost or damaged beyond repair that is the not the fault of the owner, the owner may be entitled to limit his liability to the post-damage value of the vessel (which may be $0).  In such a case, the sailor will end up with nothing even if the Jones Act or maritime law provided a claim. 
9. This article DOES NOT address two issues that crews and owners may wish to consider: 1) payroll taxes; and 2) worker’s compensation insurance.