Jonesing with the Jones Act

Rohn K. Robbins

In a prior life I lived in California, spitting distance from the coast. Provided the slobber was coated on a small rocket anyway. On a clear day, I could see the ocean glimmering from my backyard like the flittering of a far-off azure ribbon. The Rockies, for all their other virtues – for all their mighty splendor – you might have noticed, lack an ocean. As such, the Jones Act plays a less relevant role here than it did in San Diego.The Jones Act, you see, is the law of the sea. Okay, not “the” law of the sea, but “a” law of the sea. It is also know by the less imaginative name of the Merchant Marine Act. But I’ll stick with the Jones Act which engenders a certain panache and is redolent of the salty tang of Davy Jones locker. But, alas, the Jones Act has no connection to Davy Jones. Instead, it is named after Senator Wesley Jones, the Washington Republican who sponsored the Merchant Marine Act of 1920.Stated simply, the Jones Act is intended to encourage a strong domestic merchant marine. For the more land-locked among you, the merchant marine is wholly distinct and separate from the United States Marines. Rather than providing for the national defense, the merchant marine embodies a fleet of ships employed for commerce. At times – generally in times of war – the merchant marine (less often called the Merchant Navy) compliments and supports the navy.The merchant marine fleets are generally divided by category in accordance with the size and purpose of the ships. These can include “dry cargo” ships (largely container ships), oil, food and other tankers, “specialized” ships, “coasters” (smaller ships generally not plying ocean-crossing routes), ferries and cruise ships. You will likely recall that following Hurricane Katrina, various merchant ships were pressed into service, including cruise ships which provided temporary housing.Interestingly, even some landlocked countries (for example, Switzerland) have merchant marines. Hope burns eternal for the state of Colorado to one day follow suit!The act encourages a strong domestic merchant marine by several means. First, it dictates that all water-borne commerce is reserved to vessels built in the United States. Second, the vessels must be owned by American citizens and all officers and 75 percent of the crew must be American citizens. Third, the vessels must be “documented” under the American flag. “Documented,” for purposes of the Act means registered, enrolled or licensed under the laws of the United States. The rules apply, however, only to goods carried between U.S. ports. In addition to purporting to fortify the domestic economy and helping to provide for national security, the Act also allows injured seamen to obtain damages if they suffer injuries owing to the negligence of the shipowner, officers or fellow members of the crew. Perhaps not surprisingly, in light of the era in which the Act was enacted into law, it provides these protections by adopting similar legislation originally contemplated for, and written for, the protection of railway workers. From a legal perspective, this makes perfectly good sense. Generally, if one suffers a personal injury – let’s say in the state of Colorado or Indiana – the law of that state would apply. But if one is injured on the high seas, where should a claim be brought and what law should be applied? The Act provides that a claim under the Jones Act may be brought in either state or federal court.But the Jones Act provides compensation to sailors (which, under the act, generally includes off-shore oil rig workers, riverboat casino crews, shrimpers and water taxis) only in the event of negligence. If there is no negligence, the Act does not apply and an injured seaman may not recovery damages. However, under maritime law, chiefly by extending the Federal Employers Liability Act to sailors, an injured seaman has other options. In addition to availability of the Jones Act in the case of negligence, FELA offers two other avenues.The first is known as the right to “maintenance and cure.” “Maintenance” means living expenses during a recovery and “cure” means medical care. In this respect, the remedy is much like workman’s compensation law. In the event of injury, a shipowner must provide maintenance and cure regardless of whether the injury was the product of negligence.In addition to application of the Jones Act, there is another concept extended under FELA provided under the doctrine of “unseaworthiness.” “Unseaworthiness” is much like products liability law and may be available if the injuries were caused by any defective condition of the vessel.In the event an action is brought under the ambit of the Jones Act (rather than under maintenance and cure), a successful claimant may be entitled to past and future lost wages and pain and suffering damages in addition to his or her direct losses and medical care. What, though, is a seaman under the Act? Case law has defined a seaman as a worker you spends more than 30% of his or her time on navigable waters.While providing for compensation in the event of injury, none of the protections under FELA deal with a seaman’s wrongful death while on the high seas. That eventuality is covered under the aptly named Death on the High Seas Act which governs remedies available to the seaman’s heirs. If a dockside worker is inured while tending to a merchant vessel, rather than the remedies available to a seaman, his or her rights are governed under the Longshoremen’s and Harbor Workers’ Compensation Act. I am a long way from the seashore and it has been many years since I have dealt with Jones Act issues. In a nostalgic moment, though, I now and again find myself Jonesing for sea spray on the air.Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7:00 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 926-4461 or Daily, Vail, Colorado CO

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