Marine Employment



In the United States, seaman are provided significant civil protections in the event that they are injured during their employment. The act that creates these rights is commonly known as the Jones Act. It is the seagoing analogue of the worker's compensation statutes that apply to land-based employees in the United States. Unlike worker's compensation, however, the Jones Act does significantly limit the remedies of the injured worker. A Jones Act seaman, regardless of negligence of the vessel owner, is entitled to compensation for: 1) unearned wages; 2) medical expenses; 3) food and lodging. Collectively these are known as "Maintenance and Cure," or the right to be maintained at the seaman's lifestyle prior to injury, and to be cured of the injuries suffered while in the service of the vessel. The duty of the shipowner to provide maintenance and cure is absolute. If a Jones Act seaman can also demonstrate that he was injured as a result of the negligence of the employer or vessel owner, or due to unseaworthiness, the seaman is entitled to damages in addition to maintenance and cure, including pain and suffering, loss of enjoyment of life, medical damages beyond cure, and past a future wage loss.

The question of whether a particular employee is a Jones Act seaman is not clearly answered by the statute itself, and it is one with which many courts have struggled. The question was the subject of two recent Supreme Court decisions, Chandris, Inc. v. Latsis, 515 U.S. 347, 1995 AMC 1840 (1995), and Harbor Tug & Barge Co. v. Papai, 117 S. Ct. 1535, 1997 AMC 1817 (1997). Chandris articulated a two-prong inquiry for whether an employee was a Jones Act seaman: "[t]he worker's duties must contribute to the function of the vessel or to the accomplishment of its mission, and the worker must have a connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in terms of both its duration and its nature." Id. at 376, 1995 AMC at 1862-63. The principal addition of Harbor Tug was to confirm Chandris and to require that the employee "face regular exposure to the perils of the sea." Harbor Tug & Barge Co. v. Papai, 117 S. Ct. 1535, 1997 AMC 1817 (1997). It was the stated intention of the Harbor Tug court to distinguish between land-based and seagoing employees.

Thus, in order to assess whether an individual is a Jones Act seaman, all of the following questions must be raised and answered:

  1. Did the worker's duties contribute to the function of the vessel or the accomplishment of its mission?

  2. Did the worker have a connection to an identifiable vessel or group of vessels?

  3. Was the vessel (or vessels) in navigation?

  4. Was the worker's connection substantial in terms of both its duration and its nature?

  5. Did the employee face regular exposure to the perils of the sea?

If the answers to these questions are "yes," then it is likely that the individual is a Jones Act seaman. If the answer to even one of the questions is clearly "no," then the individual is probably not a Jones Act seaman. Those that are not Jones Act seamen may have other remedies, but will not be entitled to the specific protections provided by that Act.


Longshoremen and Harborworkers are traditional maritime employees, but they are not given the special protections that were provided to Jones Act seamen. In 1924, the United States Supreme Court held that maritime employees on navigable waters could not be regulated by the States under worker's compensation laws. This left employees without remedies in many instances of injury, and left employers without limitation of liability in the event of serious injury. In response, the U.S. Congress passed the Longshoreman and Harbor Workers Compensation Act ("LHWCA") in 1927. The LHWCA provided compensation for employees that were injured at work, but strictly limited the compensation that could be recovered by an employee. As the LHWCA currently stands, a covered employee is entitled to reasonable medical expenses; lost wages for temporary partial disability at 66.6% of prior income; and lost wages for permanent disability or death pursuant to tables set out in the Act.

If an employee meets the requirements of the LHWCA, the employer's liability is near absolute. The only significant defenses to liability are injuries that are caused solely by the intoxication of the employee and injury that is the result of the employee's willful intent to injure himself or another. Negligence, on the part of either the employer or the employee, is not an issue under the LHWCA. As under worker's compensation laws, however, an employee can file a negligence action (or any other action) in addition to the LHWCA claim if his or her injuries were caused by someone other than the employer

In order to be covered by the LHWCA, an employee must be engaged in maritime employment (the status test) and meet the place of injury requirements (the situs test) set out in the Act. The situs test requires that the employment be, in whole or in part, on navigable waters of the United States, including adjoining piers, wharves, drydocks, terminals, building ways or other adjoining areas customarily used by an employer in loading, unloading, repairing, building or breaking a vessel. There are many cases considering whether a particular area of a shipyard (or related area) is sufficiently close or related to the navigable waters in order to be a meet the requirements of the Act. It is not always easy to predict whether an area meets the situs test. For example, fixed offshore platforms do not meet the test, but roadways in marine terminals often do.

The question of whether an employee is "in maritime employment" has also proved elusive. A stevedore whose full-time duties involve loading or unloading ships is clearly covered by the LHWCA; as are longshoremen, docking pilots and the like. Persons whose duties involve a substantial portion of their time working on ships are most likely covered, but, if there maritime work is only periodic, they may not be. Courts have held that aircraft pilots employed as fish spotters are covered; yet the claims of maintenance workers in shipyards have been denied. The LHWCA specifically excludes employees in the following categories:

  1. Individuals employed exclusively to perform clerical, secretarial, security and data processing duties;

  2. Individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;

  3. Individuals employed by a marina who are not engaged in construction; replacement or expansion of the marina (excepting general maintenance);

  4. Individuals that are on the premises of a maritime business, but are employed by vendors, suppliers or transporters, and are not performing work normally done by maritime employees;

  5. Aquaculture employees (such as employees of seafood houses);

  6. Individuals employed to work on recreational vessels under 65 feet in length;

  7. The master or member of the crew of a vessel;
  8. Any person engaged by a master to unload a vessel under eighteen tons net.

In order to determine whether an individual is covered by the LHWCA, questions one and two must be answered affirmatively:

  1. Did the accident or injury take place on (or very near) the navigable waters of the United States?

  2. Was the individual engaged in a traditional maritime activity (such as loading, unloading, building or breaking ships)?

    The remaining questions must be answered negatively:

  3. Was the person a member of the voyaging crew (and thus a Jones Act Seaman)?

  4. Is the person specifically excluded from the LHWCA (in the list above)?

  5. Was the sole cause of the person's injury his or her own intoxication?

  6. Was the sole cause of the person's injury an attempt to injure themselves or another?

In many, many cases there will not be a certain answer to at least one of these questions. In such cases, it is strongly advisable that a person seek the advice of counsel to determine whether, from the perspective of the individual, it is better to argue for or against the application of the Act.