Crewman who are injured or who become ill while working aboard Alaska fishing vessels are protected by Federal Maritime Law. Being seriously injured causes emotional and economic stress on an injured fisherman and his family. Experienced maritime injury lawyers understand that an important part of any legal case for an injured fisherman is recovering compensation for the injured crewman’s lost wages. If you have lost wages and suffered a disabling injury that impairs your ability to work in the future, you should consult with an experienced maritime lawyer to fully learn about your rights to compensation.
When a fisherman or fish processor has lost wages because of a shipboard injury their rights to benefits involves overlapping laws and claims. Many serious fishing accident cases involve large claims for future lost wages and lost wage earning capacity. These negligence based claims are based upon the Jones Act and the Unseaworthiness doctrine.
However, as explained below, in addition to Jones Act negligence and unseaworthiness claims in most cases an injured fisherman should be also be entitled to (1) the wages he would have earned had he completed his contractual period of employment; and (2) daily maintenance payments for living expenses. The law provides for these basic benefits during the period that the injured seaman is recovering from his injuries. Obtaining maintenance, cure and unearned wage benefits assists the seaman to survive while he recovers from his injury and is unable to work. First, under the General Maritime Law an injured fisherman or fish processor is entitled to his “unearned wages until the end of the voyage”. The unearned wage claim of an injured fisherman is different and distinct from his Jones Act negligence or unseaworthiness claim for lost past and future wages. The advantage of an unearned wage claim is that it is a no-fault remedy that should be paid without substantial dispute following an injury that leaves a fisherman unable to complete his employment contract.
Unearned wages until the end of the voyage are contractual in nature and are based upon the period of time the injured crewman was to have served aboard the vessel had the crewman not become injured or ill. For example, if the crewman was employed to work for six months, and was injured one month into the contract and unable to complete the fishing contract, the injured crewman would receive five months of unearned wages. On the other hand, if the crewman was injured on the last day of a six-month contract, no unearned wages until the end of the voyage would be due.
A fisherman’s written contract is important evidence in any claim by an injured fisherman. Federal maritime law ( 46 USC 10601) requires operator or master of every fishing vessel, fish processor vessel or fish tender greater than 20 tons to make a written fishing agreement with crewman employed aboard the vessel. The fisherman’s written employment agreement is required to state:
- The period of the agreement – length of contract; and
- The wages, share or other compensation to be paid the crewman; and
- Include all other agreed upon terms.
Where the employer fails to provide his crewmen a written employment contract setting forth the terms of their fishing agreement the injured crewman may submit and argue for the highest wages in the port where he was engaged. The terms and deductions from a fisherman’s employment contract should be fully and clearly stated in the employment agreement.
To qualify for unearned wages an injured fisherman’s injuries must be such that he is unable to work in his normal duties as a fisherman. In contrast to a Jones Act negligence claim in addition to unearned wages an injured seaman who is unable to work because of his injuries is entitled to “maintenance” payments. To receive benefits under the General Maritime Law maintenance doctrine, an injured seaman does not have to prove fault or negligence. Maintenance payments are expansive and humanitarian in nature. Fault of the seaman does not bar the payment of maintenance benefits. Pre-existing medical conditions are not a bar to seaman receiving maintenance payments.
Maintenance payments are a daily living allowance paid by the vessel owner to crewman who have become ill or injured while in the services of the vessel. Maintenance is payments to the seaman for his own basic living expenses such as housing, utilities and food. Determining the rate at which maintenance benefits must be paid involves considering many factors. Recent legal cases emphasize that a seaman’s maintenance benefits must be based upon “reasonable” living expenses in the area where the injured seaman lives. Contractual rates of maintenance for injured seaman are not binding. In the Seattle area maintenance rates of $40-$75 are now common, and low contractual rates of $30 per day have been held void and unenforceable.
The vessel owner owes their crewman to promptly investigate all maintenance and cure claims. The willful and callous failure of the vessel owner may give raise to a claim for punitive damages and attorney fees.
Most Maritime lawyers that represent injured Alaska fisherman are hired on a contingency fee basis. An injured seaman does not have to pay attorney fees until the end of his case. This enables an injured fisherman to level the playing field by having an attorney on their side to get them the maritime benefits which they are entitled.