Time & Attendance
By Max Mihelich
Dec. 9, 2013
The commercial shipping industry provides for some of the most unique working conditions in the world. The maritime is guided by a rich nautical tradition, and the code of laws that governs it has been evolving for thousands of years. It’s also the only legal system in the United States that defers to the precedence of laws established by foreign courts.
“Working at sea is entirely different than working ashore. The best way to describe it is people at sea are the only people in the world who live inside the machines they operate,” said John A.C. Cartner, a maritime lawyer for Cartner & Fiske in Washington, D.C.
The recent Tom Hanks film “Captain Phillips” has thrust the commercial shipping industry into the public eye. The film depicts the hijacking of a commercial vessel by Somali pirates, raising the question of workplace safety aboard merchant vessels.
According to maritime law experts, it’s difficult for the crews of hijacked ships to prove negligence on behalf of the shipmaster — the ship’s captain — creating an unsafe working environment.
“The master has plenary authority over everything on the ship. There used to be a phrase, ‘The master is God, king and the constitution on the high seas.’ Unless the master has done something egregiously negligent, and that’s very hard to prove,” the master is not liable, Cartner said. “He’s probably following his orders. He is carrying out his duties. He is following, likely, the best practices his owner gives him. He is keeping track of where these pirates may or may not be to the best of his ability.”
'Working at sea is entirely different than working ashore. The best way to describe it is people at sea are the only people in the world who live inside the machines they operate.'
–John A.C. Cartner, a maritime lawyer for Cartner & Fiske in Washington, D.C.
The authority of shipmasters and their relative immunity in admiralty courts shows how the maritime laws of the United States are deeply rooted in tradition. And the laws pertaining to employment aboard shipping vessels are no different.
It would be unusual for a lawyer to begin an argument for a factory employee’s workers’ compensation claim by quoting a 200-year-old British law, “but in the maritime, you may as well lead off with that as a governing principle or thought,” said Len Brignac, intellectual property and maritime lawyer with New Orleans-based law firm King, Krebs & Jurgens.
While it’s difficult for a sailor to seek damages from his or her employer after a pirate attack, two important laws provide easy routes for sailors to collect compensation if they’re injured during a voyage: the Longshore and Harbor Workers’ Compensation Act and the Merchant Marine Act of 1920, better known as the Jones Act.
Both laws seek to define an individual’s status aboard a vessel. If employees are determined to be crewmembers of a vessel, they’re protected by the Jones Act. But if an employee isn’t a crewmember, that worker is protected by the Longshore Act, said Doug Mathewson, another maritime lawyer at King, Krebs & Jurgens.
If a Jones Act-protected crewmember is injured during a voyage, “he only has to prove the slightest negligence on part of the employer causing his accident,” Mathewson said. “Under the Longshore Act he can’t sue his employer for negligence or any tort type of remedy because that’s a workman’s compensation act.”
Because injury claims are the most common ones made by seamen, it’s crucial that shipping companies classify their employees correctly under either the Jones or Longshore acts.
“If you classify somebody intentionally or unintentionally under the one scheme, but they really have Jones Act rights, your employer will be exposed to additional legal fees, penalties, back wages, cost and whatever other unpleasant business can arise or occur,” Brignac said.
Further separating the merchant shipping industry from other land-based employment is the Occupational Safety & Health Administration’s lack of authority over it. OSHA can determine if it’s unsafe for a seaman to be working with a certain chemical during a voyage, but when it comes to general matters of workplace safety aboard a vessel, OSHA has no direct authority. Instead, the U.S. Coast Guard is responsible for determining what’s safe or unsafe aboard a shipping vessel, or rather its seaworthiness or unseaworthiness.
This practice is determined by nautical tradition as well. The Coast Guard regulated the seaworthiness of merchant vessels long before OSHA regulated workplace safety ashore.
“The federal labor laws, by and large, try to do a one-size-fits-all. We have our own labor laws, and that’s what applies to us because they fit shipping,” Cartner said. OSHA “has no ability to enforce either. So, accordingly, labor laws just don’t apply. It works pretty well, the system we have.”
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