The law governing a right of a seaman to recover compensation for an injury or illness suffered on shore leave while employed on a vessel is somewhat complex. This is due to the nature of the seaman’s employment. This is one of the few areas of employment that results in somewhat of a loss of personal freedom. I often tell juries this when I am trying a case involving a seaman’s injury. Once onboard, a seaman often times works seven days a week, and is on call basically 24 hours a day. The cruise ship companies are known to hire crewmembers from third world countries so they can avoid the United States labor laws. This results in crewmembers working an excessive amount of hours each day, seven days a week, for what I would consider piddly wages. It is a tremendous business advantage cruise ship companies have been able to enjoy at the expense of the workers.
As a result of the recognition of the nature of the employment of seamen, courts have been liberal in interpreting when a seaman is actually in the course and scope of his employment, if that issue becomes relevant to determining the liability of the ship owner/employer for an accident or injury. One of the main issues that surfaced early on in the law applicable to seamen was whether a seaman who goes on shore leave from the vessel, and is injured during his shore leave, is still within the course and scope of his employment, or in the service of the vessel, entitling him to pursue claims for Jones Act Negligence, Unseaworthiness and Maintenance and Cure.
The term “course of employment” has been given the same meaning as “the service of the ship” formula that has been utilized by the courts in determining whether a seaman is entitled to maintenance and cure when he suffers an injury or illness.
The typical trio of claims that a seaman brings are Jones Act Negligence claims, Unseaworthiness Claims, and Maintenance and Cure claims. The Jones Act claims is a fault-based remedy. In order to recover under the Jones Act, the seaman must prove that he was injured within the course of his employment due to the negligence of his employer, the ship’s master, or a fellow employee. Most of the time the issue whether a seaman was within the course of employment is not relevant as it is not disputed. However, when an injury occurs on shore leave, or when an injury is due to an intentional act on the part of a crewmember, the courts will get into a course and scope of employment analysis.
The Supreme Court of the United States, in a case called Aguilar v. Standard Oil, Corp. N. J., 318 U.S. 724 (1943), early on dealt with the issue of whether a seaman on shore leave was entitled to recovery, facing the argument that the seaman was not acting within the course and scope of his employment at the time of his injury. In Aguilar, a seaman was injured in a car accident when he was returning to the ship from an authorized shore leave. The authorized shore leave had nothing to do with conducting any business activities for his employer. However, in an interesting discussion by Justice Rutledge, the court set forth the policy reasons for extending coverage to authorized shore leave, which should raise some concerns about the manner in which the cruise ship companies abuse their third world country workers by working them an excessive number of hours, seven days a week. Justice Rutledge stated;
To relieve the shipowner of his obligation in the case of injuries incurred on shore leave would cast upon the seaman hazards encountered only by reason of the voyage. The assumption is hardly sound that the normal uses and purposes of shore leave are “exclusively personal” and have no relation to the vessel’s business. Men cannot live for long cooped up aboard ship without substantial impairment of their efficiency, if not also serious danger to discipline. Relaxation beyond the confines of the ship is necessary if the work is to go on, more so that it may move smoothly. No master would take a crew to sea if he could not grant shore leave, and no crew be taken if it could never obtain it… In short, shore leave is an elemental necessity in the sailing of ships, a part of the business as old as the art, not merely a personal diversion.
The voyage creates not only the need for relaxation ashore, but the necessity that it be satisfied in distant and unfamiliar ports. If in those surroundings the seaman, without disqualifying misconduct, contracts disease or incurs injury, it is because of the voyage, the shipowner’s business. That business has separated him from his usual places of association. By adding this separation to the restrictions of living as well as working aboard, it forges dual and unique compulsions for seeking relief wherever it may be found. In sum, it is the ship’s business which subjects the seaman to the risks attending hours of relaxation in strange surroundings. Accordingly it is but reasonable that the business extend the same protections against injury from them as it gives for other risks of the employment.
These principles were again recognized by the Supreme Court of the United States in a case named Warren v. United States, 340 U.S. 523 (1951). The Supreme Court recognized that seamen must have some relaxation time as part of their employment. The reasoning is that if not, men cooped up for long periods of time aboard ships without the ability to have adequate recreational activities and relaxation, will be at risk to not only discipline onboard a ship but to their health and safety. It is my opinion this explains why there are many incidents of sexual assaults on cruise ships by crewmembers, and many accidents due to fatigue and inattention. Excessive number of hours, seven days a week, for several months at a time, is just too much.
The recognition of the need for a seaman to have an adequate outlet from his strenuous work has led to cases where, even in situations where a seaman’s injuries were due to him becoming intoxicated, the seaman has still been able to recover under the Jones Act, Unseaworthiness or Maintenance and Cure. The only defense an employer would have is if he could prove willful misconduct. The courts have recognized that intoxication may just be a predisposition of seamen in general, and have been somewhat lenient in not denying a seaman recovery simply because he was intoxicated.
It is my opinion that the language espoused by Justice Rutledge in the Aguilar case raises safety concerns for all who go onboard a cruise ship. In the 30 years I have been handling maritime cases, I have observed seamen being overworked to the point of fatigue, and mental breakdowns. Many of the accidents I see is a result of fatigue, and being overworked. Many of the sexual assault cases involve crewmembers who have been cooped up for long periods of time, exactly what Justice Rutledge warned against.
To make matters worse, the cruise ship companies have started to insert mandatory arbitration agreements into the seaman’s employment contracts and have tried to skirt these favorable laws for seamen, which are needed to not only protect seaman, but passengers onboard cruise ships. These arbitration agreements are designed to prevent a seaman from getting into a court of law before a jury and presenting his claims. Instead the cruise ship companies are inserting mandatory arbitration clauses requiring arbitration under foreign laws, and absolving themselves from liability for any punitive damages notwithstanding how egregious the employers conduct may have been. The cruise ship companies simply do not want to be held accountable under the maritime laws that are well entrenched in the history of maritime law. With the stroke of a pen, the cruise ship companies are changing laws that have been on the books for hundreds of years. The courts are permitting this. Our firm is active in trying to protect the seaman against this unfair and harsh plan of attack on the part of the cruise ship companies to deny seamen these critical rights they have been afforded for their protection, as well as the protection of anyone who relies on the seaman for a safe and enjoyable voyage.
Our firm continues to act as safety advocates for anyone injured at sea.