By John K. Fulweiler
“If you can’t run with the big dogs,” a southern lawyer I clerked for liked to growl, “stay on the dadgum porch!” You can fit that line around a lot of on-the-water activities including sailing. Sailing isn’t for the faint hearted and as if my own cockpit experiences weren’t enough, my law practice has borne that out. Winches deduct digits, booms bash heads, people slip and spill seaward and bruises abound. Thing is, when fault’s involved, the maritime law has a way of unfolding these calamities and meting out some form of compensation. And you, prudent sailor, should possess at least a basic understanding of these remedies and seeing as I’m here, let me oblige.
Before we break ground, remember the maritime law tends to classify victims and your remedies tend to flow from that classification. That is, a vessel’s crewmember has a different bundle of legal solutions than, say, a passenger or researcher. Crewmembers are the princes of the sea in the eyes of the admiralty court, so let’s start with them.
The racing set’s view of crew is likely different than what I’m talking about. When the maritime law speaks about a crewmember, it’s typically not talking about your Musto-donned weekend warrior. Crewmembers in the maritime law contribute to the mission of a vessel over a meaningful period of time and in a meaningful way. (This is Fulweiler on admiralty law, so understand they're lots of permutations too replete to repeat here.) The point is, make sure you’re dealing with a crewmember before applying the legal benefits afforded crew!
And what are those benefits? Beginning at the starting line, the admiralty courts consider crew to be wards of the court. That’s a handy designation to hold because and speaking broadly here, a court will work to accommodate the crew's best interest.
Rounding the windward mark, you’ll note injured crew are entitled to something called “maintenance and cure.” That's a judicially created workers compensation scheme whereby vessel owners must pay their injured crew a daily stipend and medical care until they’re better.
At the reaching mark, you’ll see something called the warranty of seaworthiness. No finer a warranty exists in the eyes of a crewmember because it requires an owner keep her vessel reasonably fit for its intended service. The warranty of seaworthiness extends to the hull, lines, tackle and even other crew aboard the vessel, and a breach can arise despite the unseaworthiness being merely a passing guest and where the vessel otherwise left the dock in a seaworthy condition! Practically speaking, a vessel owner may be liable for a crewmember’s injury without being at fault if the vessel was unseaworthy and the unseaworthiness caused the injury.
On the leeward pin, you can’t help but see the Jones Act. This federal statute creates a remedy for crew injured as a result of the negligence of their employers or co-workers. No matter whether you’re peeling potatoes in the galley or barking commands from the wheelhouse, all crew have the same rights and can use this law to pursue a claim.
With our imaginary crewmember race course complete, remember there are other and different claims available to crew. Remember too, that the seaworthiness warranty and the Jones Act are remedies unique to crew and not available to passengers. Passengers are simply entitled to a duty of reasonable care.
If you and your spouse are just skippering your boat around the Sound, you're hopefully not going to encounter these maritime legal issues. But the fates are fickle and if you've got somebody doing work aboard, you hire a tactician to help you crush the local racing competition or you’re hosting guests, you might end up facing an injury claim. As a result, make sure your policy of marine insurance covers hired crew and that you know the obligations and limitations of your policy.
This article is provided for your general information, is not legal opinion and should not be relied upon. Always seek legal counsel to understand your rights and remedies.
Underway and making way.
Admiralty attorney John K. Fulweiler, Esq. practices maritime law on the East and Gulf Coasts. As a former partner of a Manhattan maritime firm, John now helms his own practice located in Newport, Rhode Island where he helps individuals and businesses navigate the choppy waters of the maritime law. John can be reached anytime at 1-800-383-MAYDAY (6293) or via e-mail at email@example.com.