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Recent Personal Injury and Car Accident News
An important victory in the fight for individual rights (as opposed to insurer rights) is the case of Yukumoto and HMSA v. Tawahara. In that case on May 26, 2017, the Hawaii Supreme Court rejected the efforts of a health insurer who tried to convert its insurance coverage into a 'loan agreement' and recover its medical expense payments from Mr. Yukumoto when he had a 3rd party claim - in spite of the fact that he was not being fully compensated for his losses. This insidious insurance practice has been damaging the citizens and members of the Hawaii community for many years. For more info, see the decision here: Yukumoto and HMSA v. Tawahara, Hawaii Sup. Ct. No. SCAP-15-0000460 (May 26, 2017).
JONES ACT - TABLE OF CONTENTS
The Jones Act
I. IN GENERAL B. Relationship to Other Available Remedies 3. Remedies Provided by State or Territorial Law
46 USCS Appx § 688 covers entire field of liability for injuries to seamen, is paramount and exclusive and supersedes operation of all state statutes dealing with that subject. Lindgren v United States (1930) 281 US 38, 74 L Ed 686, 50 S Ct 207; Igneri v Cie. de Transports Oceaniques (1963, CA2 NY) 323 F2d 257, cert den 376 US 949, 11 L Ed 2d 969, 84 S Ct 965 and (disapproved on other grounds American Export Lines, Inc. v Alvez, 446 US 274, 64 L Ed 2d 284, 100 S Ct 1673).
Under Jones Act, which authorizes deceased seaman's personal representative to maintain action for seaman's death as result of personal injury in course of employment, wrongful death actions are limited to negligence; Jones Act pre-empts state law remedies for death or injury of seaman. Miles v Apex Marine Corp. (1990, US) 112 L Ed 2d 275, 111 S Ct 317.
Jones Act does not abrogate state's Eleventh Amendment immunity. Hilton v South Carolina Public Rys. Com. (1991, US) 116 L Ed 2d 560, 112 S Ct 560, 91 Daily Journal DAR 15439, 15 BNA OSHC 1465.
Where 46 USCS Appx § 688 applies, state statutes are excluded. Kibadeaux v Standard Dredging Co. (1936, CA5 Tex) 81 F2d 670, cert den 299 US 549, 81 L Ed 404, 57 S Ct 12.
Local law is now completely irrelevant to substantive rights concerning maritime injury at least short of death. Flowers v Savannah Machine & Foundry Co. (1962, CA5 Ga) 310 F2d 135.
Federal, not state, law governs claims under 46 USCS Appx § 688. Barboza v Texaco, Inc. (1970, CA1 Mass) 434 F2d 121.
Contract between oil company and service for selling wireline services furnished to movable drilling rig is not maritime contract and state law therefore applies. Domingue v Ocean Drilling & Exploration Co. (1991, CA5 La) 923 F2d 393.
Injured seaman or representative of diseased seaman must be content with rights given by 46 USCS Appx § 688 for recovery on account of employer's negligence and cannot take advantage of state statutes. Bath v Sargent Line Corp. (1958, DC NY) 166 F Supp 311.
In admiralty action with claims under 46 USCS Appx § 688, substantive law of state is not controlling. Valentine v Wiggins (1965, ED NC) 242 F Supp 870.
Law applicable to both negligence action brought under Jones Act (46 USCS Appx § 688) and unseaworthiness claim brought under general maritime law is general federal maritime law, and not substantive state law of forum. Parisi v Lady in Blue, Inc. (1977, DC Mass) 433 F Supp 681.
State-law loss-of-consortium claims by wife and child of seaman, who was injured while employed as crew member aboard vessel, are dismissed, because Jones Act (46 USCS Appx § 688) does not extend recovery to spouse for loss of consortium due to nonfatal injury, so allowing claims under state law would contradict rather than supplement maritime law, would promote nonuniformity, and would disavow Congress's purpose in enacting Jones Act that Jones Act seamen take remedies available under Federal Employers' Liability Act (45 USCS § § 51 et seq.). Clancy v Mobile Oil Corp. (1995, DC Mass) 906 F Supp 42, 1996 AMC 272, accepted (1995, DC Mass) 1995 US Dist LEXIS 16534.
With respect to those activities which are directly connected with commerce and navigation in their interstate and international aspects, law must be uniform throughout United States, and laws of various states cannot modify or vary it. Zubik v Bethlehem Steel Co. (1941) 144 Pa Super 13, 18 A2d 441.
28. --Supplemental remedies
Survivors of seaman may recover for his wrongful death in Ohio waters only under 46 USCS Appx § 688 and not under Ohio statute dealing with unseaworthiness, as 46 USCS Appx § 688 is exclusive; however, action under state law for pain and suffering incurred prior to death is not precluded by 46 USCS Appx § 688. Gillespie v United States Steel Corp. (1964) 379 US 148, 13 L Ed 2d 199, 85 S Ct 308 (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.
46 USCS Appx § 688 applies only to seamen, but state statute which does not enlarge admiralty jurisdiction but merely gives cause of action in addition to that given by federal statute or general maritime law is enforceable in admiralty court. Young v Clyde S.S. Co. (1923, DC Fla) 294 F 549 (disapproved on other grounds United States Fidelity & Guaranty Co. v Reed Constr. Co. (Fla App D3) 149 So 2d 578).
46 USCS Appx § 688 is exclusive of all state legislation, but only in field which it covers, which is liability of employers to their employees, and seaman's or stevedore's widow may still invoke state statutes giving her right of action for death of her husband if caused by third person within territorial limits of state. Kwasizur v Dawnic S.S. Co. (1938, DC Pa) 25 F Supp 327, 1938 AMC 1231.
Although 46 USCS Appx § 688 may supersede state-created remedies against employer, it does not preclude actions against other tortfeasors given by state law. Petition of Oskar Tiedemann & Co. (1964, DC Del) 236 F Supp 895, revd on other grounds (CA3 Del) 367 F2d 498, supp op (CA3 Del) 367 F2d 505, cert den 386 US 932, 17 L Ed 2d 805, 87 S Ct 953 and cert den 386 US 932, 17 L Ed 2d 805, 87 S Ct 957, reh den 386 US 1000, 18 L Ed 2d 354, 87 S Ct 1303.
46 USCS Appx § 688, unlike Longshoremen's and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.), has no provision rendering inoperative state laws which create parallel remedies. Plantation v Roberts (1976, Fla) 342 So 2d 69.
29. Compensation acts
One who has elected to sue under state employers' liability law cannot urge abrogation of fellow servant rule in 46 USCS Appx § 688. Van Norden v Chas. R. McCormick Lumber Co. (1927, CA9 Or) 17 F2d 568, 1927 AMC 514, cert den 274 US 758, 71 L Ed 1337, 47 S Ct 768.
State did not waive its Eleventh Amendment immunity from suit in federal court by incorporating Jones Act into its statutes, where statutes contained venue provision conflicting with Jones Act venue provision; statutory reference to Jones Act does not create "such overwhelming implication" from text of state statute that state consented to be sued in federal court. Micomonaco v Washington (1995, CA9 Wash) 45 F3d 316, 95 CDOS 445, 95 Daily Journal DAR 799.
Prerequisites for finding seaman exempt from coverage under federal maritime laws and 46 USCS Appx § 688 owing to coverage under Puerto Rico Workers' Compensation Act are (1) that employer is duly authorized by Commonwealth to do business in Puerto Rico; (2) employer insured employees under Act; (3) accident occurred within territorial waters of Puerto Rico; and (4) seaman was resident of Puerto Rico at time of accident. Nahan v Pan Am. Grain Mfg. Co. (1997, DC Puerto Rico) 967 F Supp 648.
Remedies provided by state workmen's compensation law are not available to seaman whose injuries are within 46 USCS Appx § 688 or maritime law as to maintenance and cure; to exclude state compensation law in favor of maritime law, there must appear to be impairment of uniformity of operation of maritime laws, and with reference to employees other than seamen, service performed must have relation to commerce and navigation. Occidental Indem. Co. v Industrial Acci. Com. (1944) 24 Cal 2d 310, 149 P2d 841.
New York has made compensation exclusive remedy available to state employees injured in course of employment and has withheld consent to be sued in such cases; Congress, in enacting 46 USCS Appx § 688, had neither intent nor power to require state courts to accept such cases in defiance of statutes limiting their jurisdiction. Maloney v State (1956, 4th Dept) 2 App Div 2d 195, 154 NYS2d 132, affd 3 NY2d 356, 165 NYS2d 465, 144 NE2d 364.
30. --Effect of prior state action on subsequent federal action
Determination of nonseaman status made by Industrial Accident Board of Texas did not foreclose subsequent suit as seaman under 46 USCS Appx § 688 on grounds of either res judicata or estoppel. Mike Hooks, Inc. v Pena (1963, CA5) 313 F2d 696, 1963 AMC 355.
Unsuccessful action for workmen's compensation is not inconsistent with and does not prevent subsequent action for damages under 46 USCS Appx § 688. Boatel, Inc. v Delamore (1967, CA5 La) 379 F2d 850.
Workers' Compensation award that gives claimant no more than payments that are analogous to maintenance and cure will not be deemed to settle all of seaman's claims and will not bar Jones Act suit. Mooney v City of New York (2000, CA2 NY) 219 F3d 123.
Action under 46 USCS Appx § 688 would not be stayed on ground that compensation claim on same cause was pending before state Department of Labor. Marceau v Great Lakes Transit Co. (1944, DC NY) 53 F Supp 594, 1944 AMC 508, affd (CA2 NY) 146 F2d 416, 1945 AMC 223, cert den 324 US 872, 89 L Ed 1426, 65 S Ct 1018.
31. ----Effect of recovery in state action
Doctrine of local concern will not be applied to result in exclusion of maritime law by state workmen's compensation act where plaintiff is seaman injured on navigable waters; acceptance by deckhand of payments under state compensation act is not sufficient to justify implying release from such payments so as to preclude recovery under 46 USCS Appx § 688. Gahagan Const. Corp. v Armao (1948, CA1 Mass) 165 F2d 301, cert den 333 US 876, 92 L Ed 1152, 68 S Ct 905.
Seaman who signs state workmen's compensation agreement and receives payment thereunder, and executes final receipt, is not barred from recovery under 46 USCS Appx § 688 or doctrine of unseaworthiness but in event he recovers verdict, court will be free to apply equitable principles and set off compensation payments from amount of award. Schellenger v Zubik (1959, DC Pa) 170 F Supp 92.
Since issues essential to jurisdiction under 46 USCS Appx § 688 were not determined in state compensation proceedings which resulted in award to widow for death of her husband, widow was not collaterally estopped to recover under 46 USCS Appx § 688 and fact that widow received part of award did not preclude assertions of her rights under 46 USCS Appx § 688. De Court v Beckman Instruments, Inc. (1973, 4th Dist) 32 Cal App 3d 628, 108 Cal Rptr 109.
32. --Effect of prior federal action on subsequent state action
Claim of workers' compensation insurer for reimbursement of benefits paid to injured worker who was determined to be seamen and entitled to benefits under Jones Act, is granted summarily, because injured maritime worker is not allowed to recover twice for same maritime injury, once under federal maritime law and once under state workers' compensation law. Ditmore v Fairfield Indus. (1994, SD Tex) 855 F Supp 187.
Where claimant was injured while employed as cook on boat plying on Great Lakes and had recovered under 46 USCS Appx § 688, he was not entitled to compensation from state workmen's compensation board. Marceau v Great Lakes Transit Co. (1946) 271 App Div 853, 66 NYS2d 24.
33. --Puerto Rico
1980 amendments to Organic Act of Puerto Rico (48 USCS § 749) permitted Puerto Rico to supplant Jones Act (46 USCS Appendix § 688) with Puerto Rico Workmen's Accident Compensation Act (11 LPRA § § 1-42) for covered accidents to resident seamen that occurred within 3 marine leagues of Puerto Rican coastline. Perez De La Cruz v Crowley Towing & Transp. Co. (1986, CA1 Puerto Rico) 807 F2d 1084.
Seaman covered by Puerto Rico workmen's compensation act could not maintain action under 46 USCS Appx § 688 or general maritime law against his employer for injuries. Flores v Prann (1959, DC Puerto Rico) 175 F Supp 140.
34. ----Effect of situs of injury; waters of Puerto Rico
Seaman and crews of vessels who were injured while at work on their respective vessels when afloat on navigable waters within territorial limits of Puerto Rico could not maintain actions under 46 USCS Appx § 688 but were confined to remedies provided by Puerto Rico's workmen's compensation act. Fonseca v Prann (1960, CA1 Puerto Rico) 282 F2d 153, cert den 365 US 860, 5 L Ed 2d 822, 81 S Ct 826.
Puerto Rico Workmen's Accident Compensation Act, and not federal maritime law, is exclusive remedy in suits against insured employer for injuries sustained in course of employment in San Juan Harbor, even though employer and owner of tug was wholly owned subsidiary of mainland corporation. Salas Mojica v Puerto Rico Lighterage Co. (1974, CA1 Puerto Rico) 492 F2d 904.
Court could not pierce corporate veil of insured employer under Puerto Rico Workmen's Accident Compensation Law and hold parent company, uninsured under Puerto Rico statute, liable for negligence under 46 USCS Appx § 688 and unseaworthiness of tug owned and operated by its wholly owned subsidiary, which allegedly caused injury to Puerto Rico seaman within territorial waters of Puerto Rico; Puerto Rican seaman injured in territorial waters of Puerto Rico while working for employer insured pursuant to Puerto Rico Workmen's Accident Compensation Act could not sue his employer under 46 USCS Appx § 688 or under law of unseaworthiness. Fanfan v Berwind Corp. (1973, ED Pa) 362 F Supp 793.
Seaman's Jones Act (46 USCS Appx § 688) claim must be dismissed, where wind blew wheel house door shut on his hand while tug was docked in Puerto Rican territorial waters, because when Puerto Rican seaman is injured within territorial waters of Puerto Rico while working for company insured under Puerto Rico State Insurance Compensation Fund, his exclusive remedy lies pursuant to Puerto Rico Workmen's Compensation Act. Reeser v Crowley Towing & Transp. Co. (1996, DC Puerto Rico) 937 F Supp 144.
35. ------Outside waters of Puerto Rico
Puerto Rican seaman injured on board his vessel docked at Morgan City, Louisiana, has cause of action under 46 USCS Appx § 688 and general maritime law, notwithstanding coverage under exclusive remedy provisions of Puerto Rican Workmen's Accident Compensation. Manuel Caceres v San Juan Barge Co. (1975, CA1 Puerto Rico) 520 F2d 305.
36. --Particular circumstances
Employee on vessel, assisting in unloading vessel afloat on navigable waters, was not entitled to recover for injuries under state workmen's compensation act. Employers' Liability Assur. Corp. v Cook (1930) 281 US 233, 74 L Ed 823, 50 S Ct 308, 1930 AMC 760.
Master of ship, who was instructed to supervise crew during vacation due to absence of ship doctor, was seaman on ship engaged in navigation where ship was moored to float in navigable waters, hence death of master from drowning as result of returning late at night to ship was covered by 46 USCS Appx § 688 rather than by compensation under local workmen's compensation act. Alaska Dept. of Health v Alaska Industrial Board (1951, DC Alaska) 101 F Supp 171.
Jones Act seaman who suffered stroke while piloting vessel on navigable waters of United States could not constitutionally be provided remedy under state workmen's compensation statute. Bearden v Leon C. Breaux Towing Co. (1978, La App 3d Cir) 365 So 2d 1192.
Mississippi workmen's compensation law was inapplicable to deceased who at time of his death was employed as master and pilot on tugboat in interstate commerce on navigable waters of United States. Valley Towing Co. v Allen (1959) 236 Miss 51, 109 So 2d 538.
Member of a pile driver's crew connected with barges without motive power located on navigable river was seaman, and for injuries received must seek compensation under 46 USCS Appx § 688 and not under state workmen's compensation act. Pfister v Bagdett Const. Co. (1933, Mo App) 65 SW2d 137.
37. Wrongful death actions
Action lies under general maritime law for death caused by violation of maritime duties; thus, widow and representative of estate of longshoreman killed while working aboard vessel on navigable waters within state were entitled to bring action in state court against owner of vessel to recover damages for wrongful death and for pain and suffering experienced by decedent prior to death, predicating claims upon both negligence and unseaworthiness of vessel even though statutory right of action for death under state law did not encompass unseaworthiness as basis of liability. Moragne v States Marine Lines, Inc. (1970) 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906.
Moragne v State Marine Line, Inc. (1970) 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772 on remand (CA5 Fla) 446 F2d 906, did not require decedent's widow who had brought action in federal court for wrongful death, to be given another opportunity to sue under state wrongful death statute. Epling v M. T. Epling Co. (1970, CA6 Ohio) 435 F2d 732, cert den 401 US 963, 28 L Ed 2d 247, 91 S Ct 990.
46 USCS Appx § 688 prevails over state death statutes not constituting part of maritime law. Renew v United States (1932, DC Ga) 1 F Supp 256, 1932 AMC 1110.
No action lies under state law to recover damages for wrongful death occurring on navigable waters since wrongful death action under general maritime law has pre-empted field. Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).
Potential culpability of U.S. will not be considered in calculation of damages liability in complex asbestos litigation, where serviceman's installation of asbestos in naval vessels constitutes course of activity incident to service, because jurisdiction over U.S. could not be had pursuant to Jones Act (46 USCS Appx § 688), Suits in Admiralty Act (46 USCS Appx § § 741 et seq.), or Public Vessels Act (46 USCS § § 781 et seq.). Re Joint Eastern & Southern Dist. Asbestos Litigation (1992, ED NY) 798 F Supp 940.
Action lies under general maritime law for death caused by violation of maritime duties so as to permit wrongful death claims based on unseaworthiness. Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906.
Where 46 USCS Appx § 688 is controlling, states statutes giving wrongful death action are inapplicable in case of seaman's death. Carrington v Panama Mail S.S. Co. (1929) 136 Misc 850, 241 NYS 347, revd on other grounds 232 App Div 695, 247 NYS 674, different results reached on reh 233 App Div 855, 251 NYS 803.
38. --Action against non-employer
46 USCS Appx § 688 is exclusive of all state legislation, but only in field which it covers, which field is liability of employers to their employees, and seaman's or stevedore's widow may still invoke state statutes giving her right of action for death of her husband if caused by third person within territorial limits of state. Kwasizur v Dawnic S.S. Co. (1938, DC Pa) 25 F Supp 327, 1938 AMC 1231.
Widow's wrongful death judgment against manufacturer of asbestos insulation on ships that deceased husband was employed on cannot be offset by amounts received in settlement by widow from shipowners, where agreement settled widow's claims against shipowners under general maritime law and 46 USCS Appx § 688, because liability to seaman under unseaworthiness theory or Jones Act claim is form of liability which is not based on traditional notions of fault and is of wholly different character than liability for common-law negligence, and thus shipowners' breach of duty to provide safe place to work does not make shipowners joint tortfeasor with negligent manufacturer. Boyett v Keene Corp. (1993, ED Tex) 815 F Supp 204, 1993 AMC 1964, affd (CA5) 1993 US App LEXIS 15852, reh, en banc, den (CA5) 1993 US App LEXIS 19335.
Requirement that claim for adjustment be presented to comptroller of city before commencement of any action against city is inconsistent with uniform operation of maritime law within all states, which cannot be deflected or impaired by state statutes. Frame v New York (1940, DC NY) 34 F Supp 194, 1940 AMC 935.
Louisiana direct action statute was inapplicable to case involving injury on fixed platform on Outer Continental Shelf even though cause of action was based on 46 USCS Appx § 688. Koesler v Harvey Applicators, Inc. (1976, ED La) 416 F Supp 872.
Workmen's compensation action by injured seaman is not precluded under 46 USCS Appx § 688, notwithstanding employer's insurance coverage for such claims, where supreme court of state in which injury occurred has ruled that such coverage is not "ocean marine insurance" under state statute precluding Jones Act claims when "ocean marine insurance" is carried. Dominick v Houtech Inland Well Service, Inc. (1989, ED La) 718 F Supp 489.
JONES ACT - TABLE OF CONTENTS