Tuesday, April 3, 2018



OUR CHIEF ADMIRALTY LEGAL CORRESPONDENT, THE LATE LOUIS BRANDEIS, FORMER ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT FROM 1916 to 1939, The only true legal commentator in the nation worthy of the title "ghost writer" 

An injured American seaman injured in the course of his duties  is entitled by common  law that predates the Republic and by 20th century statute to "Maintenance", "Cure", and "Lost Wages" regardless of relative "fault" for the cause of his injuries. This assured "recovery" is to be awarded the injured commercial mariner without him having to prove any fault on the part of the ship owner. But it is not a generous recovery despite its inclusive sounding name.  "Maintenance" refers to the costs to ship owners for providing the seaman a bunk and meals at sea, about enough to pay for a bunk in a flop house ashore. "Cure" refers to the point where medical doctors determine that they can do no more to relieve pain and restore function, nothing in it usually about rehabilitation, or vocational re-training. The mariner who loses a leg generally gets a peg and best wishes. "Lost wages" generally means the normal wage paid to the end of the voyage or contract, its a very lucky seaman who draws much more than a month or two base wages. 

 To many modern international trade mariners. routine over time is an important part of the wages of any voyage. Sometimes an average over time wage provision is negotiated into the shipping articles by a seaman's union. Absent a contract that the court can uphold generally seamen seeking to add over time wages to their lost wage settlement are sent empty away. In the "bad ole days" they could be seen outside the "Stone Frigates" ( seamen's flop houses) of England teaching themselves how to trod a deck on a peg leg. 

The precedent in these matters is not especially good for the seaman with no or a poorly written contract. Barnes v. Andover Co. L.P. F.2d 630 (3ird Cir.1990) does give courts the authority to impose an over time recovery where evidence is sufficient to demonstrate that the unearned wage rate in a contract or articles is insufficient for the purposes of justice and equity. "Sufficient evidence"and insufficiency and rarely found in the plaintiff seaman's favor. Recently the Third Federal Circuit ruled against a seaman's over time claim setting aside arguments that both the common law and Barnes (Supra) allowed the court to rule in the seaman's favor. In Joyce v. Maersk Line Ltd, Dist. of NJ 16-3553 the lower court ruled against the plaintiff seamen's claim for over time pay and was upheld by the applet court. The standard for proving an over time pay claim as part of the assured no fault recovery of maintenance, cure and lost wages is obviously almost impossibly high. 

 Before the middle of the 20th century the U.S. Navy eliminated its old regulations governing the lives of its enlisted sailors known as the "Rocks and Shoals" in favor of the then new Uniform Code of Military Justice . No equivalent change has occurred yet for the Merchant Mariner, the admiralty system is ancient and full of rocks and shoals over which, more frequently than not, the unlucky seaman is dragged . Mariners and their union reps need to carefully construct and negotiate over time provisions into shipping articles and contracts. Labor contracts too are probably the only way that rehabilitation might find its way into any no fault personal injury recovery.   

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