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Legal claims for ill or injured seamen, part 1: Maintenance and cure

We've focused a lot so far in this blog on injuries and deaths to commercial fishermen. Given how dangerous those jobs are, there is plenty to write about.

In this two-part post, we will use a Q & A format to look at the legal remedies available to fishermen and other seamen who suffer injury or illness while employed on a vessel.

Is there more than one type of claim possible for injured seamen?

Yes. In a 1995 case, the U.S. Supreme Court noted that seamen are entitled to a "trilogy of heightened legal protections" because of the perils they face at sea.

In other words, there are three main remedies that are available to seamen who get hurt or become ill due to those perils.

What are those three types?

Let's start with the Merchant Marine Act of 1920, a federal law known as the Jones Act. The Jones Act allows a seaman to sue an employer for injuries caused by the employer's negligence. This was a change from traditional maritime law, which did not permit such suits.

The Jones Act left in place, however, the possibility to make claims under maritime law based on a vessel's lack of seaworthiness, as well as claims based on maintenance and cure.

What is maintenance and cure?

Maintenance and cure is a remedy that goes back to medieval times. It refers to the right of a seaman who becomes ill or injured while employed on a vessel to receive compensation for necessary medical costs ("cure") and living expenses ("maintenance") while recuperating.

To be eligible for maintenance and cure, it is not necessary to show fault by your employer. All you have to show is that you become ill or injured while employed on a vessel and did not commit any willful misbehavior that caused your condition.

How long does maintenance and cure last?

Maintenance and cure lasts until you have reached maximum medical improvement. It can raise difficult factual questions about whether you are at that point, and you should be sure to have strong legal counsel to guide you while this is being decided.

Can you bring both a Jones Act claim and a maintenance and cure claim?

You don't have to bring a Jones Act (negligence) claim in order to bring maintenance and cure claim. You can bring, however, bring both a Jones Act claim and a maintenance and cure claims, as well an unseaworthiness claim, in the same lawsuit. That is what the Supreme Court meant in 1995 when it said seamen are entitled to a trilogy of protections.

In part two of this post, we will discuss claims based on lack of seaworthiness.

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