Once an injury occurs on navigable waters the law to be applied is not Land-Based Law, but Federal Maritime Law. The significance of this is important for all practitioners who may represent individuals injured on navigable waters, whether they are on a pleasure boat, on a cruise vessel, someone who is a seaman, or a member of the crew of any vessel on navigable waters.
Maryland is one of four states that still adheres to the rule of contributory negligence.
That is to say that if a person is one per cent at fault, they cannot recover for their injuries. Maryland, Virginia, North Carolina, Alabama and the District of Columbia are the only jurisdictions in the United States which adhere to that rule. The Maritime Rule is quite different. It is pure comparative negligence. Contributory negligence is not a bar, and if someone were to bring a claim under the Maritime Law and was one per cent at fault, they could still recover 99 per cent of their damages.
Additionally, a common defense in Maryland personal injury cases is assumption of risk.
Under Maryland Law, a wage earner who sustains injuries and has lost wages is entitled to gross wages in his/her recovery.
That has no application under the Maritime Law. Maryland has had a cap, a limit on noneconomic damages, since 1986. There is no cap on non-economic damages under the Admiralty and Maritime Law. That applies to both injury or death. Under Maryland Law, a wage earner who sustains injuries and has lost wages is entitled to gross wages in his/her recovery. Under the Federal Maritime Law, it is net wages, which is basically the deduction of income taxes. The negligence of a fellow servant is not a bar to recovery under the Maritime Law, so if somebody is, for example, working with a Plaintiff aboard a vessel and that person is negligent, the vessel owner is responsible for that fellow servant's negligence.
There is a doctrine that is over one hundred years old that applies in the Maritime Law known as Limitation of Liability. A vessel owner can limit his/its liability to the value of the vessel after the casualty as long as the owners are not in privity or knowledge of the dangerous condition giving rise to the injury. This is a unique area of the law which grew up at a time when the Maritime Law was in its infancy to help promote shipbuilding and ship going operations.
Working a case up under the Maritime Law is very similar to that of a land-based case.
A person injured on navigable waters can bring a case in both State Court or, if there is diversity of citizenship, in the United States District Court, and ask for a Jury trial. One can also bring an action in the United States District Court under the Maritime Law, but you will not get a jury unless you have diversity of citizenship.
Another unique area of the law is the Jones Act, 46 USC 688. This is a Federal Law passed by Congress in 1920. This law applies to seamen who are members of the crew of a vessel. It permits a seaman the right to sue his/her employer for negligence and/or unseaworthiness of the vessel. Comparative negligence applies. There is no assumption of risk, there is no cap on non-economic damages for injury or death, and the Fellow Servant Rule is inapplicable here as well. Unseaworthiness is a unique concept, which is liability without fault. It is strict liability. It does not mean that the vessel is in danger of sinking, but rather that it is not fit for its intended purpose. That can relate to machinery, appurtenances, or even personnel.
Whether someone is or is not a seaman is generally a question of fact for the jury. A significant body of law has developed about the factors involved in determining whether or not a person is a seaman.
There is no loss of consortium for a seaman under the Jones Act. It is strictly pecuniary loss, as well as pain and suffering, or wrongful death damages. If a seaman's status is proven, a seaman is entitled to maintenance and cure while unfit for duty and recovering from injuries. This is regardless of fault. The amount of the maintenance and cure varies from place to place and can vary depending upon whether or not a contract exists through a particular union such as the Seafarer's International Union.
Maritime Law Vs Land Based Cases
Working a case up under the Maritime Law is very similar to that of a land-based case.
Preparation that needs to be done, is virtually the same. Prompt and effective investigation is a necessity. Obtaining statements, photographs, log entries from the vessel, personal injury reports, conducting depositions, performing discovery, entering the vessel for inspection and the hiring of experts applies equally to a case on navigable waters, as well as one on the shore.
A significant body of law has developed about the factors involved in determining whether or not a person is a seaman.
Changes in Law and Its Impact
There have been a number of changes in the law that have resulted over the last forty years. These have been particularly in the areas of damages, wrongful death, the definition of seaman status, the definition of vessels, and violation of statutes or regulations which can give rise to negligence per se. Another interesting area relating to Maritime cases, particularly in today's world, is that of injuries occurring onboard a cruise vessel. There are a significant number of vessels that ply American shores and foreign shores and one of the most significant issues is the statute of limitations. Generally, one will find in a Cruise Contract a one- year statute of limitations which has been upheld as valid. It is also likely that the Cruise Contract will also include a Forum Selection Clause requiring the person to file suit in a particular jurisdiction. Many times, it is the United States District Court for the Southern District of Florida located in Miami, Florida.
Perhaps one of the most important factors to consider when a practitioner is faced with the possibility of having a maritime case is to contact a maritime lawyer who is familiar with the intricacies of the Maritime Law because there are many pitfalls and problems associated with maintaining such a claim.
PAUL D. BEKMAN
BEKMAN@BMAIAWFIRM.COM
BEKMAN, MARDER &ADKINS, L.L.c.
300 WEST PRATT STREET· SUITE 450. BALTIMORE, MARYLAND 21201
410-539-6633· FAX : 410-625-9554
Paul D. Bekman is the Managing Partner of Bekman, Marder & Adkins, LLC. Mr Bekman has practised in the area of serious personal injury and wrongful death cases during the entire time he has practiced law for over forty-seven years. He was a graduate of the University of Maryland School of Law in 1971. He has been a Fellow of the American College of Trial Lawyers since 1993, a Fellow in the International Academy of Trial Lawyers, the American Board of Trial Advocates, the International Society of Barristers, he was Alumni of the Year at the University of Maryland School of Law in 2010, and was named one of the eleven Living Legal Legends by the Baltimore City Bar Association in 2010. He has tried several hundred personal injury and wrongful death cases during his career in Federal Court, State Court and various states on the East Coast. He has obtained a significant number of multimillion-dollar verdicts in those trial Courts.
One of the areas of his speciality is Admiralty and Maritime Cases. He has been a Proctor in Admiralty since 1974. He is a member of the Maritime Law Association of the United States and has served on the Local Admiralty Advisory Committee of the United States District Court for the District of Maryland on numerous occasions.
