Towboat Injury

United States intracoastal waterway mapA towboat is a vessel that moves barges up and down the inland rivers and intracoastal waterways of the United States. The rivermen who crew the towboat, (towboater) are constantly working in a high risk dangerous environment. The nature of the towboat and barge industry on the inland river system is very dangerous. Working on inland barges is extremely hands on and a towboater is constantly working either docking barges, building tow, or working on the towboat. A towboat corporation (company) like most sophisticated corporate operations run its operation using a cost benefit analysis; money is made only if the cargo is timely moved on the river and delivered. We use the label towboat corporation (company) to emphasize to you that most if not all towboat operations on the inland rivers are corporate owned. Usually a large corporation will own controlling stock in the towboat operation in which you work.

The crew of a towboat varies from corporation to corporation. To maximize profit many towboat schedules require crew members to serve a 30 day hitch. Other companies require two or three weeks on with one or two weeks off. The size of the crew depends on several factors including the size of the towboat, the towboat’s schedule of operation, and the towboat company policy for manning its towboat. Even a cook is a member of the crew. On the smaller towboats, and on some larger towboats where corporate policy doesn’t allow for a cook, usually one of the towboat crew will volunteer or one is assigned by the captain to assume the cooking duty.

The deckhands are the grunts of the towboat crew. Their job is extremely hands on and physically demanding. The turnover rate for deckhands on towboats is very high. Two years is a long time for a deckhand on the river. The mates who direct the deckhands were once themselves deckhands but stayed the course despite the demanding rigors of the job. The licensed members of the towboat crew vary, depending on the size of the towboat and corporate policy. Crews usually include an engineer but will always include a pilot, and the captain. Depending on the length of the hitch there may be a relief captain or relief pilot aboard.

Navigation is the responsibility of the towboat captain and the pilots who rotate wheel house watch during the voyage. Piloting the inland waterways maneuvering loaded tow around shoals, bends, and through locks sometimes working 30 day hitches and rotating watch is a demanding occupation.

1. What injury laws apply to a towboat crew?

The entire crew of a towboat from the captain to the cook is covered under Federal General Maritime Law and the Jones Act. State workers’ compensation laws do not apply to injured rivermen.

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2. What rights do I have under the general maritime law?

If you are injured while working as a member of the crew on a towboat, you are entitled under the General Maritime Law to certain remedies, including maintenance (a daily amount for subsistence during recuperation), cure (medical care), and unearned wages to the end of the voyage or employment contract. The general maritime law also provides a tort remedy based on unseaworthiness, a type of strict liability.

If you were injured on a towboat where the crew was under manned or fatigued due to lack of adequate rest or not properly trained then the towboat company would most likely be held strictly liable for your injury.

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3. What do the terms maintenance and cure mean?

A towboat crew member is entitled to maintenance and cure when injured or taken ill while in the service of the towboat. This right is broader than under most workers compensation laws in that the injury or illness need not necessarily be work related under the general maritime law. It is sufficient if the illness manifests itself during the voyage or hitch aboard the towboat. For example, a crew member who has appendicitis is entitled to CURE, which means to have his medical bills and associated medical expenses paid until he reaches Maximum Medical Improvement following surgery even though the appendicitis was in no way caused by his work nor was it a condition that is traditionally considered “work related”.

Maintenance is designed to provide the ill or injured towboat crew member with compensation sufficient to pay for food and lodging expenses. The amount of maintenance to which the towboat crew member is entitled is a factual question, but is often said to be in replacement of the cost to the towboat company for the food and lodging of the towboat crew member while aboard the towboat.

Maintenance ranges between $15 and $25 per day in most cases. The amount of maintenance for a union crew member is usually fixed in the union contract, but for non-union crew members, the amount of maintenance is at the discretion of the Court. It is a rare Court that awards more than $25 per day for maintenance.

The obligation of the towboat company to pay maintenance and cure terminates when the crew member reaches Maximum Medical Improvement. If a condition is incurable, the obligation to pay maintenance and cure ends when it is determined that the sickness or incapacity is permanent.

Cure means that the towboat corporation (company) is obligated to pay the injured crew member’s reasonable medical expenses up until the time of Maximum Medical Improvement. A crew member has the right to select his own physician and method of treatment. Contrast this with the usual right of the employer to select the physician under state workers’ compensation law.

The towboat company’s obligation of cure is not merely to reimburse an injured towboat crew member for medical expenses. The towboat company must also make arrangements for the towboat crew member to obtain the medical care if the crew member is not in a position to do so.

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4. What about wages?

An injured crew member as part of maintenance and cure is entitled to wages from the time of incapacity to the end of the voyage or hitch. If you became incapacitated from your injuries while on a 30 day hitch after only 7 days aboard the towboat you are entitled to 23 days of unearned wages. However, unearned wage claims are rare because an injured crew member typically has claims for negligence under the Jones Act and for unseaworthiness under the General Maritime Law which allow recovery for lost past income and lost future earnings.

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5. What does “unseaworthiness” mean?

The doctrine of unseaworthiness is a feature of the General Maritime Law. The warranty of seaworthiness imposed by operation of law on a towboat company is an absolute and non-delegable duty owed to the crew to provide a towboat that is reasonably fit for its intended purposes or for its intended voyage. The mere happening of an accident is not evidence of unseaworthiness, but when a breach of the warranty causes injury or death, the towboat and towboat corporation (company) can be found liable.

The duty to provide a towboat that is reasonably safe extends to all parts of the vessel and tow and to almost all facets of its operation. The fact that the unseaworthy condition occurred after the towboat left port is immaterial. It is no excuse that the towboat company had no notice or opportunity to correct the condition that caused the injury.

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6. What conditions make a vessel “unseaworthy”?

The warranty of seaworthiness extends to all parts of the towboat including the hull, appliances, gear and equipment, the tow, even the towboat’s crew. Indeed, unfit crew members constitute just as much of a hazard as unfit gear.

A sleep deprived crew or fatigued crew could fit into the category of an unfit crew. An unfit crew is a breach of the warranty of seaworthiness. Your employer, the towboat company, may require its crew to work 30 days straight onboard with extremely long working hours with little time for sleep between watch. The cause of injuries in this dangerous environment like other dangerous environments often can be traced to fatigue and stress from sleep deprivation. Fatigue and lack of sleep may interfere with a towboater’s biological circadian schedule thus interfering with your ability to remain alert.

Temporary conditions such as oil, water, or ice on the deck may constitute transitory unseaworthiness. These conditions are often recent and there is no knowledge of the condition, either actual or constructive, on the part of the vessel owner. However, the vessel owner’s knowledge of the condition is not material to whether or not the vessel was unseaworthy.

In a classic case, factually not related to a towboat but illustrative for the point to be made, the plaintiff was a crew member of a fishing trawler. During the unloading of the catch, fish spawn and slime had covered the deck and railing. The plaintiff, who was attempting to get off the vessel, put his foot on the rail, slipped, and was injured. The Court held that it did not matter that the condition arose after the voyage began. Also, the lack of constructive or actual knowledge of the condition by the owner or the lack of an opportunity to correct it was no defense. The fishing trawler breached the warranty.

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7. What is the Jones Act?

The Jones Act is a federal statute which provides a crew member with a negligence remedy against a crew member’s employer for the injury or death of a crew member. The Jones Act is special because it allows you to recover money damages for your injury by a direct suit against the towboat company for its negligence or the negligence of its towboat crew.

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8. How can a seaman prevail under the Jones Act?

You should consider retaining a competent admiralty attorney. As a member of the towboat crew you must show that the towboat company was negligent and that the negligence was a cause of the injury sustained. Further, unlike cases of “unseaworthiness” it must be shown that the towboat company knew or in the exercise of due care, should have known, of the dangerous condition that was a cause of your injury.

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9. Where do I bring my claim for unseaworthiness or for negligence under the Jones Act?

As the plaintiff, you may sue the towboat company under the Jones Act in either Federal Court or in State Court. If the case is originally brought in the State Court, the towboat company may not remove the case to the Federal Court. Even if the case is brought in the State Court, the Federal Law applies to the State claim. A claim for “unseaworthiness” may be combined or brought in the same case as your Jones Act suit.

If you were to bring only an unseaworthiness claim in the Federal Court, this would be an admiralty action and there would be no right to a jury trial. However, if you also coupled the unseaworthiness claim with a claim for negligence under the Jones Act in the Federal Court, then you may ask for a jury trial as to both claims.

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10. What is the statute of limitations for a Jones Claim Act?

Three (3) years.

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11. What is the statute of limitations for an unseaworthiness claim?

Three (3) years.

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12. What if I’m injured aboard a government vessel?

The Statute of Limitations is (2) years.

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13. What does the statute of limitations mean?

If you don’t file your claim in court within 3 years from the date of your injury, and you haven’t settled your claim out of court, you will be forever barred from recovering any damages for your injuries.

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14. How can you help me if I live in another state or city from your law offices?

Even though our main office is in Pensacola, Florida, we will travel across the nation to you in an appropriate case. In some cases, we may have to associate with a local attorney in states other than the gulf coast states of Florida, Alabama, and Mississippi, in order to comply with local state rules.

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15. How are your legal fees paid?

We collect a fee only if we recover for you. We charge you a “contingent fee” which is usually one third of the total amount we recover. We advance on your behalf the costs to investigate and prosecute your claim. If we don’t make a recovery for you, you owe us nothing. Our fee and recovery of our funds advanced for costs are contingent upon the recovery of money damages for you either through settlement or by a court judgment.

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16. How do I make an appointment with you?

You can e-mail us or telephone us directly. You may also send us a brief message via our contact form. Upon receipt of the form or a telephone message from you we will contact you personally and immediately.

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17. What about sensitive personal information?

We hold all communications from you in the strictest of confidence and will not disclose to anyone without your permission any information. Even if you don’t decide to retain us the information you provided us is held in strict confidence and will not be disclosed without your permission.

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18. What if I already have a lawyer?

Our offer to answer a question for you also includes our willingness to talk to your attorney or answer the question for him at no charge. But, if you have a lawyer, it would be appropriate that you check with him first and get his approval to communicate with us. You should follow his advice as long as he or she represents you and do nothing to jeopardize your case.
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