Checklist · Maritime

Handling a Jones Act Seaman's Injury Claim: A Practical Checklist

33 U.S.C. § 902(3)

Type
Checklist
Jurisdiction
National
Date
2024-05-16
Topic
Maritime

A working checklist for handling a maritime personal-injury claim from intake through settlement. It starts where every such case must start — with seaman status under the two-part Chandris test, the threshold question that decides whether the claimant is in the Jones Act regime, the LHWCA regime, or state workers' compensation. It then walks the vessel and employer identification, evidence preservation and the Coast Guard casualty investigation, the forum and jury decision under the saving-to-suitors clause and the Rule 9(h) election, and the pleading of the three classic counts: Jones Act negligence, unseaworthiness, and maintenance and cure. It covers the featherweight causation standard, the near-absolute maintenance-and-cure obligation and the punitive exposure for arbitrary denial, the McCorpen concealment defense, comparative fault, the shipowner's limitation-of-liability petition and its six-month fuse, the damages that are recoverable and the punitive damages that are not after Dutra, the three-year limitations period, and the special judicial scrutiny given to a seaman's release. Federal maritime law governs throughout, but circuit law varies on several of the hardest points, and this checklist flags each of them.

Handling a Jones Act Seaman's Injury Claim: A Practical Checklist

Maritime > Maritime Personal Injury | Published 16 May 2024 - Updated 28 November 2025 | UpLaw - uplaw.us

A seaman's injury case is three lawsuits wearing one caption. Get the status question wrong at intake and you have not lost an argument — you have filed in the wrong universe.

Keywords: Jones Act, seaman status, Chandris test, unseaworthiness, maintenance and cure, McCorpen defense, LHWCA, saving to suitors, Rule 9(h), limitation of liability, featherweight causation, comparative fault, vessel in navigation, seaman's release

How to use this checklist

American law treats maritime workers better than almost anyone else who gets hurt on the job — but only if they are seamen. A seaman sues for negligence with a jury, sues the vessel for unseaworthiness without proving fault, and collects maintenance and cure regardless of who was at fault, all at once. A worker who is not a seaman is generally locked into a no-fault compensation system with no jury and no pain-and-suffering award. The line between those two worlds is the single most consequential fact in the case, and it is contested in most of them.

This checklist runs the case in fourteen phases. Work them in order. The running example: Marisol Okonkwo, a deckhand who says she blew out her shoulder handling a mooring line aboard the M/V Cormorant Belle, an offshore supply vessel operated by Tidewell Marine Services. Tidewell says Okonkwo was really a warehouse hand who happened to be aboard that week — that is, that she is not a seaman at all. Everything else in the case turns on that fight.

For the doctrinal foundation underneath these steps, read Admiralty and Maritime Law: A Comprehensive Guide; for the full map of the practice area, see The Maritime Law Toolkit.

Phase 1 — Status first: is the claimant a "seaman"?

  • [ ] Confirm the claimant is an employee of the defendant (the Jones Act runs against the employer, not the vessel owner as such, though they are often the same entity).
  • [ ] Apply prong one of Chandris: do the claimant's duties contribute to the function of the vessel or to the accomplishment of its mission? (Post-Wilander, the worker need not aid in navigation — a cook, a rigger, a driller all qualify.)
  • [ ] Apply prong two: does the claimant have a connection to a vessel in navigation (or an identifiable fleet of vessels under common ownership or control) that is substantial in both duration and nature?
  • [ ] Run the duration rule of thumb: roughly 30% or more of work time in the service of a vessel in navigation. Compute it honestly, from payroll, crew lists, and time sheets — not from the client's memory.
  • [ ] Run the nature inquiry: is the work sea-based? Is the claimant exposed to the perils of the sea? Is the assignment transitory or permanent?
  • [ ] If the job changed, apply Chandris's reassignment principle: status is assessed over the claimant's employment with the employer, but a permanent reassignment to a new position resets the clock.
  • [ ] Identify whether the claimant belongs to a fleet — and confirm common ownership or control (Papai).
  • [ ] Note that seaman status is usually a jury question (Gizoni) — resist the reflex to concede it away in a summary-judgment stipulation.

Why it matters, and the traps. Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), is the whole ballgame. The Court framed seaman status as a two-part test and endorsed the Fifth Circuit's 30% rule of thumb as a guideline, not a statute — "departure from it will certainly be justified in appropriate cases." McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991), killed the old "aid in navigation" requirement. Harbor Tug & Barge Co. v. Papai, 520 U.S. 548 (1997), narrowed the fleet doctrine and insisted the substantial-connection inquiry ask whether the worker is genuinely exposed to the perils of the sea. And Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991), holds that receiving LHWCA benefits does not by itself foreclose seaman status.

The Fifth Circuit's en banc decision in Sanchez v. Smart Fabricators of Texas (5th Cir. 2021) sharpened the "nature" prong for workers who go aboard vessels to do land-type work — asking whether the worker owes allegiance to the vessel, whether the work is sea-based, and whether the connection is transitory. That decision matters enormously in the Gulf, less so elsewhere; check your circuit.

The trap: lawyers count days aboard instead of time in the service of a vessel in navigation. For Okonkwo, Tidewell's timekeeping shows 11 weeks aboard the Cormorant Belle out of 40 weeks employed — 27.5%, just under the line. But six of the "shoreside" weeks were spent at the dock rigging and maintaining the same vessel while it was practically capable of getting underway. Reclassify those and she clears 40%. That single spreadsheet decision is worth the entire case.

Phase 2 — If not a seaman: LHWCA, § 905(b), or state comp?

  • [ ] Test LHWCA status (33 U.S.C. § 902(3)): is the worker engaged in maritime employment — longshoring, ship-repairing, shipbuilding, ship-breaking, harbor work?
  • [ ] Test LHWCA situs (33 U.S.C. § 903(a)): injury on navigable waters, including adjoining piers, wharves, dry docks, terminals, and marine railways.
  • [ ] Confirm the crew-member exclusion: § 902(3)(G) excludes "a master or member of a crew of any vessel" — the statutory mirror image of "seaman." The two regimes are mutually exclusive.
  • [ ] If LHWCA applies, remember § 905(a): compensation is the exclusive remedy against the employer.
  • [ ] Evaluate the § 905(b) vessel-negligence action against the vessel as vessel — a real third-party tort claim, governed by Scindia's turnover duty, active-control duty, and duty to intervene.
  • [ ] If neither regime fits, evaluate state workers' compensation and any state-law tort claim, keeping the maritime preemption question in view.
  • [ ] Watch the election and lien consequences: an LHWCA carrier that pays will assert a lien on any § 905(b) or third-party recovery (33 U.S.C. § 933).

Why it matters, and the traps. The Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901–950, is the default federal regime for maritime workers who are not crew. Under Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981), the § 905(b) claim is narrow: the vessel owes a duty to turn the ship over in reasonably safe condition, to exercise care in areas under its active control, and to intervene when it knows of a dangerous condition the stevedore is unreasonably failing to correct. It is nothing like the absolute unseaworthiness warranty a seaman enjoys.

The trap is pleading in the alternative badly. Because seaman status and LHWCA coverage are mutually exclusive, a complaint that asserts both without an alternative-pleading structure invites a defense motion. Plead them expressly in the alternative and preserve the jury question. The general negligence architecture — duty, breach, causation, damages — is the same one covered in Tort Law: A Comprehensive Guide to Negligence, Intentional Torts, and Strict Liability; the intake economics are the same ones in Evaluating a Personal Injury Claim: A Practical Checklist.

Phase 3 — Identify the vessel, the owner, the operator, and the employer

  • [ ] Confirm the craft is a vessel: 1 U.S.C. § 3 — "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water."
  • [ ] Apply Stewart v. Dutra Construction Co., 543 U.S. 481 (2005): the craft must be practically capable of maritime transportation; it need not be primarily or currently used for it.
  • [ ] Apply Lozman v. City of Riviera Beach, 568 U.S. 115 (2013): a reasonable observer test — a floating structure not designed to any practical degree to carry people or things over water is not a vessel.
  • [ ] Confirm the vessel is in navigation — afloat, in operation, capable of moving. A vessel withdrawn for major overhaul or reconstruction may drop out of navigation.
  • [ ] Pull the Certificate of Documentation, abstract of title, and any preferred ship mortgage; run the Coast Guard's vessel documentation records.
  • [ ] Distinguish owner, owner pro hac vice / bareboat charterer, operator, time charterer, and employer — they are frequently four different corporations.
  • [ ] Identify the borrowed-servant risk: a worker on the payroll of a labor contractor may be the borrowed servant of the vessel operator, who then becomes the Jones Act employer.
  • [ ] Locate all P&I insurance and any excess layers; send preservation and notice letters to carriers.

Why it matters, and the traps. Maritime corporate structures are deliberately layered. The employer for Jones Act purposes may be a staffing entity with a $250,000 balance sheet while the vessel-owning single-purpose LLC holds the hull. Unseaworthiness runs against the vessel owner; Jones Act negligence runs against the employer. Sue only one and you may have a liability finding against a shell.

Do the corporate archaeology at intake, not at the pretrial conference. Marisol Okonkwo's paycheck says "Tidewell Crewing LLC"; the Cormorant Belle is owned by "Belle Marine Holdings LLC" and operated under a bareboat charter by "Tidewell Marine Services LLC." All three belong in the caption, with an alter-ego / borrowed-servant theory pleaded in the alternative. Coverage architecture is its own discipline — see Insurance Coverage Law: A Comprehensive Guide for Policyholders.

Phase 4 — Preserve evidence: vessel, logs, casualty report, witnesses

  • [ ] Send a litigation hold and preservation letter the day you are retained — to the employer, the owner, the operator, and the P&I club.
  • [ ] Demand preservation of: deck and engine logs, the official logbook, night orders, the bell book, VDR/ECDIS/AIS data, ECS tracks, engine-room alarms, and CCTV.
  • [ ] Demand the safety management system documents required under the ISM Code: the SMS manual, job safety analyses, toolbox-talk records, near-miss reports, and internal audits.
  • [ ] Demand maintenance records for the specific gear involved — the winch, the line, the ladder, the deck coating.
  • [ ] Preserve the physical item itself (the parted mooring line, the failed shackle). Photograph, tag, and secure it before it goes overboard.
  • [ ] Obtain the Coast Guard casualty file: the CG-2692 Report of Marine Casualty and any investigation report, plus post-casualty chemical-testing records (46 U.S.C. § 6101; 46 C.F.R. Part 4).
  • [ ] Get crew statements early — crews rotate off, sign onto foreign-flag vessels, and vanish.
  • [ ] Photograph the scene as it was: lighting, sea state, deck condition, the actual gear in place.
  • [ ] Serve a Rule 34 request for vessel inspection promptly; the ship will not stay in one place.

Why it matters, and the traps. In a shore-side slip-and-fall, the scene sits still. In a maritime case, the scene sails away, gets repainted in a shipyard in Corpus Christi, and is sold to a Panamanian buyer. Evidence preservation is not a background task in this practice; it is the first substantive act of the case. The mechanics of holds, custodians, and ESI scope are in Issuing a Litigation Hold and Preserving ESI: A Practical Checklist, and the broader toolkit in Federal Civil Discovery: Mastering the Tools, Rules, and Pitfalls.

The Coast Guard file is a gift and a hazard. It often contains admissions and a contemporaneous causal narrative. But post-casualty chemical testing under 46 C.F.R. Part 4 cuts both ways: if your client tested positive, you will litigate the significance of that result for the rest of the case, and you should know it on day one, not at deposition.

Phase 5 — Forum and jury: saving to suitors and the Rule 9(h) election

  • [ ] Recognize the seaman's forum menu: state court (saving-to-suitors), federal court at law (Jones Act, or diversity), or federal court in admiralty (Rule 9(h)).
  • [ ] Remember the jury right: the Jones Act, 46 U.S.C. § 30104, gives the seaman a statutory action at law with the right of trial by jury. Admiralty jurisdiction, by itself, does not.
  • [ ] If you want a jury, do not make the Rule 9(h) admiralty designation on the negligence count. A 9(h) election is an election of a bench trial.
  • [ ] Confirm the anti-removal rule: the Jones Act incorporates FELA, including 28 U.S.C. § 1445(a), so a properly pleaded Jones Act claim is generally not removable, even with complete diversity — subject to the fraudulent-pleading exception.
  • [ ] Use Fitzgerald to keep the whole case together: when a Jones Act claim is joined with unseaworthiness and maintenance-and-cure claims arising from one set of facts, all may be tried to the same jury.
  • [ ] Evaluate venue honestly: jury pools in maritime districts vary enormously, and so does circuit law on seaman status.
  • [ ] Preserve in rem options — an arrest of the vessel under Supplemental Rule C requires admiralty jurisdiction and is a bench proceeding.

Why it matters, and the traps. The saving-to-suitors clause, 28 U.S.C. § 1333(1), preserves to suitors "all other remedies to which they are otherwise entitled" — which is how a maritime plaintiff gets to a state-court jury at all. Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963), then supplies the glue: the maintenance-and-cure claim, historically an admiralty claim tried to the bench, goes to the jury when joined with a Jones Act count on the same facts.

The classic malpractice-adjacent error is a reflexive Rule 9(h) designation on a form complaint. It reads like a jurisdictional formality. It is not — it is a waiver of the jury, and courts hold the plaintiff to it. Draft the complaint deliberately; see Drafting a Federal Civil Complaint: A Practical Checklist and the forum-selection analysis in Choosing a Dispute-Resolution Forum: Litigation, Arbitration, and Mediation Compared.

Phase 6 — Plead the three counts

  • [ ] Count I — Jones Act negligence against the employer: unsafe condition, unsafe method of work, inadequate crew, inadequate training, negligent order, failure to provide prompt medical care.
  • [ ] Count II — Unseaworthiness against the vessel owner: defective gear, unfit crew, unsafe method of work, insufficient manning, dangerous cargo stow.
  • [ ] Count III — Maintenance and cure against the employer: daily maintenance, cure to maximum medical improvement, and unearned wages.
  • [ ] Add, where the facts support it: punitive damages for willful and arbitrary denial of maintenance and cure (Atlantic Sounding), and attorney's fees for callous refusal (Vaughan).
  • [ ] Plead alternative status (seaman / LHWCA) where status is genuinely contested.
  • [ ] Plead the jury demand on every count triable to a jury.
  • [ ] In a death case, plead Jones Act wrongful death and, if the death occurred beyond the statutory distance from shore, DOHSA, 46 U.S.C. §§ 30301–30308 (pecuniary loss only).

Why it matters, and the traps. These three counts are not redundant. They have different defendants, different standards, different defenses, and different damages. Unseaworthiness does not require fault; Jones Act negligence does. Maintenance and cure does not care about fault at all, and comparative negligence does not reduce it. A complaint that folds them into a single "negligence" count throws away leverage. On pleading structure and affirmative defenses, see Answering a Complaint and Pleading Affirmative Defenses: A Practical Checklist.

Phase 7 — Jones Act negligence and the featherweight standard

  • [ ] Identify the duty: the employer owes a duty to provide a reasonably safe place to work — an ordinary-negligence duty, but one courts apply with a maritime thumb on the scale.
  • [ ] Frame causation correctly: under the FELA standard incorporated by the Jones Act, the question is whether employer negligence played any part, even the slightest, in producing the injury (Rogers).
  • [ ] Cite CSX Transportation, Inc. v. McBride, 564 U.S. 685 (2011): FELA does not require proximate cause in its common-law formulation; Rogers states the test.
  • [ ] Fight the jury instruction. The single most valuable paragraph in a Jones Act trial is the causation charge.
  • [ ] Build the negligence theory from the employer's own documents: the SMS, the JSA, the risk assessment, the manning plan.
  • [ ] Retain a marine-safety expert early; expect a Rule 702 fight.
  • [ ] Remember: the featherweight standard applies to the Jones Act count only — unseaworthiness requires ordinary proximate causation.

Why it matters, and the traps. Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500 (1957), is the reason Jones Act cases settle. Defense counsel who try the case as a garden-variety negligence action lose it at the charge conference. Plaintiff's counsel who forget that the unseaworthiness count carries a higher causation burden get a split verdict they did not anticipate.

Okonkwo's negligence theory: Tidewell's own JSA required four hands on a mooring evolution in a beam sea; three were assigned; the mate ordered the line handled anyway. That is negligence, and under Rogers it does not have to be the dominant cause — only a cause, however slight. Prepare the expert record with Challenging an Expert Under Daubert and Rule 702: A Practical Checklist in hand, and take the shipboard depositions using Preparing to Take a Deposition: A Practical Checklist.

Phase 8 — Unseaworthiness: the absolute, non-delegable duty

  • [ ] Frame the duty: the vessel owner warrants a vessel and its appurtenances reasonably fit for their intended purpose. This is liability without fault (Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960)).
  • [ ] Understand what it is not: it is not a warranty of an accident-free ship, and it is not strict liability for any injury aboard.
  • [ ] Catalogue the classic unseaworthy conditions: defective equipment, an unfit or undermanned crew, an unsafe method of work, an inadequate appliance, a slippery deck of some duration.
  • [ ] Distinguish operational negligence: a single, instantaneous negligent act by a crewmember does not by itself render the vessel unseaworthy (Usner v. Luckenbach Overseas Corp., 400 U.S. 494 (1971)).
  • [ ] Prove proximate causation — the higher standard — on this count.
  • [ ] Confirm the defendant: unseaworthiness runs against the owner / owner pro hac vice, not necessarily the employer.
  • [ ] Do not plead punitive damages on this count — see Phase 12.

Why it matters, and the traps. Unseaworthiness descends from The Osceola, 189 U.S. 158 (1903), and reached its modern form in Mitchell, which stripped out any requirement of notice or opportunity to cure. Its power is that fault is irrelevant: if the winch brake was worn out, the vessel was unseaworthy whether or not anyone was careless about it.

Its limit is Usner. The defense will characterize every accident as a one-off crew error — instantaneous operational negligence — to knock out the unseaworthiness count and leave you with fault-based negligence only. The plaintiff's answer is to show a condition: not "the mate made a bad call once" but "the vessel was manned below its own safety plan and the crew was systematically undertrained."

Phase 9 — Maintenance and cure: the near-absolute remedy

  • [ ] Confirm the trigger: the seaman fell ill or was injured in the service of the vessel. Fault, and even the seaman's own negligence, is irrelevant.
  • [ ] Demand maintenance — the daily cost of food and lodging ashore, equivalent to what the seaman received aboard.
  • [ ] Demand cure — necessary medical care until maximum medical improvement (MMI), the point at which the condition will not improve further (Farrell v. United States, 336 U.S. 511 (1949)).
  • [ ] Demand unearned wages to the end of the voyage or contract term.
  • [ ] Litigate the maintenance rate. Many employers pay a token CBA rate ($20–$40 a day is common in industry practice). Circuits split on whether a CBA rate binds a covered seaman; a non-union seaman is generally entitled to the actual, reasonable cost of food and lodging, proved with receipts and a household-expense affidavit. Verify current circuit law and the operative CBA — do not assume the daily figure.
  • [ ] Remember the tie-breaker: ambiguities and doubts are resolved in favor of the seaman (Vaughan v. Atkinson, 369 U.S. 527 (1962)).
  • [ ] Anticipate the McCorpen defense: concealment of a prior condition. The employer must show (1) intentional misrepresentation or concealment of medical facts, (2) materiality to the hiring decision, and (3) a causal link between the concealed condition and the injury (McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547 (5th Cir. 1968)).
  • [ ] Defeat McCorpen where you can: no pre-hire medical questionnaire, no specific question asked, a genuinely different body part, or no causal connection.
  • [ ] Escalate an unpaid claim in writing, with records attached, and document every refusal — this builds the punitive case.
  • [ ] Plead punitive damages and attorney's fees for willful, arbitrary, or callous denial (Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009)).

Why it matters, and the traps. Maintenance and cure is the oldest remedy in this book — the seaman as "ward of the admiralty," a doctrine tracing to Harden v. Gordon and given modern scope in Aguilar v. Standard Oil Co., 318 U.S. 724 (1943). It is close to absolute, it starts immediately, and it is the plaintiff's cash flow while the case is pending. It is also the defense's favorite pressure point: cut off cure, and the injured seaman with no income and a torn labrum becomes very interested in a cheap settlement.

That squeeze is exactly what Atlantic Sounding punishes. Punitive damages remain available for willful and wanton failure to pay maintenance and cure, and Dutra expressly left Townsend standing. So paper the refusal. A defense adjuster who terminates cure on a one-line letter, against the treating physician's report, is handing you a punitive-damages exhibit.

Okonkwo's file: Tidewell paid maintenance at $28/day for six weeks, then cut it off after a records review turned up a 2016 chiropractor visit for "shoulder soreness." That is a McCorpen play — but Tidewell's pre-hire questionnaire asked only about "back injuries," and the 2016 complaint was cervical, not the labrum. No intentional concealment, no materiality, no causal link. The cutoff was arbitrary, and now the punitive count is real.

Phase 10 — Comparative fault and the primary-duty rule

  • [ ] Confirm the rule: contributory negligence is not a bar; it reduces damages proportionally (FELA § 53, 45 U.S.C. § 53, incorporated by the Jones Act).
  • [ ] Confirm the corollary: assumption of risk is not a defense in a Jones Act case (Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424 (1939); 45 U.S.C. § 54).
  • [ ] Note that comparative fault applies to negligence and unseaworthiness counts — but not to maintenance and cure.
  • [ ] Where the employer's violation of a safety statute or regulation caused the injury, argue that comparative fault is eliminated (the FELA negligence-per-se principle).
  • [ ] Prepare for the primary-duty rule — the narrow doctrine, traced to Judge Learned Hand's opinion in Walker v. Lykes Brothers Steamship Co. (2d Cir. 1952), that a seaman who knowingly breaches a duty consciously assumed as a term of employment may be barred or reduced. Its scope varies materially by circuit; several circuits confine it to officers with supervisory safety duties. Check your circuit before relying on it or conceding it.
  • [ ] Reframe defensively: "he chose to lift it alone" is usually not assumption of risk — it is evidence of an unsafe method of work the employer permitted.

Why it matters, and the traps. The defense will spend the trial telling the jury the seaman hurt himself. Legally, that argument buys a percentage, not a dismissal. The plaintiff's job is to keep the percentage low by showing the employer created or tolerated the condition. The defense's job is to make the seaman's choices look voluntary and stupid — which is precisely why the assumption-of-risk bar exists. Object when the argument crosses the line, and get a clean comparative-fault instruction.

Phase 11 — Watch for the limitation-of-liability petition

  • [ ] Diary the six-month fuse the moment a written notice of claim is delivered: the shipowner must file its limitation petition within six months after receiving written notice of a claim.
  • [ ] Understand the ask: the owner seeks to limit liability to the value of the vessel plus pending freight — sometimes a small fraction of the claim.
  • [ ] Understand the defense: the owner must prove the loss occurred without its privity or knowledge. Corporate shore-side knowledge of a defective condition destroys limitation.
  • [ ] Expect the injunction and concursus: the limitation court enjoins all other proceedings and gathers claims into one admiralty (bench) action.
  • [ ] Fight your way back to a jury: under Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438 (2001), a single claimant who files adequate stipulations — conceding the limitation court's exclusive jurisdiction over limitation issues, waiving res judicata on limitation, and capping recovery at the limitation fund pending that determination — may proceed in the forum of choice.
  • [ ] In a multi-claimant case, negotiate the multiple-claimant stipulations (all claimants prioritizing the shipowner's claims and agreeing not to enforce judgments beyond the fund).
  • [ ] Confirm the procedure under Supplemental Rule F of the Federal Rules of Civil Procedure.
  • [ ] Verify the current statutory citations. The Limitation of Liability Act was long codified at 46 U.S.C. §§ 30501–30512, and Congress renumbered portions of that chapter in a 2022 recodification. Cite the current section numbers, not the ones in an old form book.

Why it matters, and the traps. The Limitation Act is a nineteenth-century subsidy for shipowners that still works. Its real weapon is procedural: it drags a state-court jury case into federal admiralty, where a judge decides everything. Plaintiff's counsel who do not know the Lewis stipulation practice cold lose the jury they carefully preserved in Phase 5.

The other trap runs the other way. The six-month clock starts on written notice of a claim — and a demand letter can start it. Defense counsel who file on month seven have surrendered limitation entirely.

Phase 12 — Damages: what is in, and what is out

  • [ ] Recoverable on the negligence and unseaworthiness counts: past and future lost wages and lost earning capacity, past and future medical expenses, pain and suffering, mental anguish, disability and disfigurement, and loss of found (the value of room and board aboard).
  • [ ] Retain an economist and, where the injury is career-ending, a vocational rehabilitation expert; discount future losses to present value.
  • [ ] Note the maritime treatment of prejudgment interest: routinely awarded in admiralty (bench) proceedings; generally unavailable on a Jones Act claim tried at law to a jury. Confirm your circuit's rule.
  • [ ] No punitive damages for unseaworthiness. The Dutra Group v. Batterton, 588 U.S. 358 (2019), squarely so holds. Pleading them anyway invites a Rule 12 motion and a credibility hit.
  • [ ] Punitive damages remain available for willful and wanton denial of maintenance and cure (Atlantic Sounding, expressly preserved by Dutra).
  • [ ] Treat punitive damages for Jones Act negligence as generally unavailable under the uniformity principle of Miles v. Apex Marine Corp., 498 U.S. 19 (1990).
  • [ ] Note that loss of society / loss of consortium is generally not recoverable in the seaman's personal-injury and wrongful-death setting under the general maritime law (Miles).
  • [ ] In a death case beyond the statutory distance from shore, DOHSA limits recovery to pecuniary loss — no grief, no loss of society.

Why it matters, and the traps. This is the phase where old briefs go to die. Before 2019, several circuits allowed punitive damages for unseaworthiness; Dutra ended that, and any brief or form complaint still asserting it is out of date. Do not copy it forward. Conversely, the Townsend punitive claim for maintenance-and-cure denial survives and is often the most valuable count in a modest-value case. Value the case with the discipline in The Litigation Damages Toolkit: Valuing and Proving Money Awards.

Phase 13 — The limitations period

  • [ ] Diary three years from the date the cause of action arose for maritime personal injury or death (46 U.S.C. § 30106).
  • [ ] Apply the discovery rule for latent injuries and occupational exposure (asbestos, noise-induced hearing loss, repetitive trauma) — the clock runs when the plaintiff knew or should have known of the injury and its cause.
  • [ ] Apply the same three-year benchmark to maintenance and cure claims, with laches as the equitable backstop in admiralty.
  • [ ] Check for shortened contractual limitations periods in passenger tickets and some employment agreements (a passenger-injury issue, but it appears in crew agreements too).
  • [ ] Check for special sovereign defendants: claims against the United States (Suits in Admiralty Act; Public Vessels Act) carry their own two-year limitations period and their own presentment rules. Do not assume three years against a government vessel.
  • [ ] Do not let a maintenance-and-cure payment lull you: payments do not toll the limitations period for the tort counts.

Why it matters, and the traps. Three years feels generous next to a one-year notice statute, so lawyers relax. Then the case turns out to involve a Military Sealift Command vessel, or a vessel operated for the United States, and the real deadline was two years under a different statute with different procedures. Screen for a federal-vessel defendant at intake, every time.

Phase 14 — Settlement, the seaman's release, and liens

  • [ ] Value the case across all three counts, including the maintenance-and-cure punitive exposure.
  • [ ] Determine whether there is a limitation fund ceiling that caps realistic recovery.
  • [ ] Draft the release knowing that a seaman's release is not an ordinary release: under Garrett v. Moore-McCormack Co., 317 U.S. 239 (1942), the burden is on the shipowner to show the release was executed freely, without deception or coercion, and with full understanding of the seaman's rights.
  • [ ] Build the record accordingly: independent counsel, a full medical disclosure, an itemized statement of the rights being released, and — in a large settlement — a judicial approval or an on-the-record colloquy.
  • [ ] Resolve liens before you disburse: LHWCA carrier lien (33 U.S.C. § 933), health-plan/ERISA reimbursement, Medicare conditional payments and reporting obligations under the Medicare Secondary Payer Act (42 U.S.C. § 1395y(b)), Medicaid, and provider liens.
  • [ ] Consider a Medicare set-aside analysis where future treatment is likely and the claimant is or will soon be a Medicare beneficiary. Practice here is evolving; confirm current CMS guidance for liability settlements.
  • [ ] Allocate the settlement thoughtfully among counts and among past medicals / future medicals / lost wages / pain and suffering, with the tax and lien consequences in view.
  • [ ] Obtain W-9s and dismissal papers for every defendant, including the limitation petitioner.

Why it matters, and the traps. A shipowner who buys a release from an unrepresented seaman in a hospital room has bought very little. Garrett flips the ordinary presumption of contractual validity, and courts enforce that flip. For the defense, this means the cheap release is a false economy: build the record or expect to litigate it twice. For the plaintiff, it means a client who already signed something is not necessarily out of court — get the document and evaluate it against Garrett before you decline the case.

Common Mistakes to Avoid

  1. Counting days aboard instead of time in the service of a vessel in navigation. The 30% figure from Chandris is a rule of thumb about the right denominator, not a headcount of overnight bunks.
  2. Making the Rule 9(h) election on a form complaint. It is a jury waiver. Read it before you check it.
  3. Filing the negligence count against the owner and the unseaworthiness count against the employer. They point at different defendants; get the caption right.
  4. Pleading punitive damages for unseaworthiness. Dutra Group v. Batterton (2019) forecloses it. Pre-2019 forms are wrong.
  5. Forgetting that punitive damages are available for arbitrary denial of maintenance and cure. Atlantic Sounding survives Dutra, and defense adjusters keep proving it.
  6. Missing the six-month limitation fuse — on either side. Plaintiffs get ambushed by the petition; defendants blow the deadline and forfeit limitation.
  7. Accepting the CBA maintenance rate without a fight for a non-union seaman.
  8. Charging the jury on proximate cause for the Jones Act count. The standard is Rogers: any part, even the slightest.
  9. Conceding an unseaworthiness count to Usner by pleading a one-off crew error instead of a shipboard condition.
  10. Assuming three years against a government vessel. Different statute, different clock.
  11. Letting the ship sail before you inspect it. The scene is mobile, the crew rotates, and the gear gets replaced.
  12. Treating a seaman's release as an ordinary release. Garrett puts the burden on the shipowner.

The Consolidated Jones Act Checklist

Status and parties

  • [ ] Chandris prong one: duties contribute to the vessel's function or mission
  • [ ] Chandris prong two: substantial connection in duration (~30%) and nature
  • [ ] Vessel status under 1 U.S.C. § 3, Stewart v. Dutra, Lozman; vessel in navigation
  • [ ] Employer, owner, owner pro hac vice, operator, charterer identified; borrowed-servant theory preserved
  • [ ] Alternative LHWCA / § 905(b) / state-comp analysis run

Evidence

  • [ ] Preservation letters to employer, owner, operator, P&I club
  • [ ] Logs, VDR/AIS, CCTV, SMS/JSA/near-miss records, maintenance records secured
  • [ ] Physical evidence tagged; vessel inspection demanded
  • [ ] CG-2692 and Coast Guard file obtained; chemical-testing results reviewed
  • [ ] Crew witnesses located and statements taken

Pleading and forum

  • [ ] Forum chosen; jury preserved; no Rule 9(h) election if a jury is wanted
  • [ ] Non-removability confirmed (28 U.S.C. § 1445(a))
  • [ ] Count I Jones Act negligence (employer); Count II unseaworthiness (owner); Count III maintenance and cure
  • [ ] Punitive damages pleaded only on the maintenance-and-cure count
  • [ ] Jury demand on all triable counts

Merits

  • [ ] Rogers featherweight causation charge drafted for the Jones Act count
  • [ ] Proximate causation proof built for the unseaworthiness count
  • [ ] Unseaworthy condition (not one-off operational negligence) established
  • [ ] McCorpen elements tested and rebutted
  • [ ] Maintenance rate proved with receipts; cure demanded to MMI; unearned wages calculated
  • [ ] Comparative fault percentage managed; assumption of risk objected to

Procedure and endgame

  • [ ] Limitation six-month clock diaried; Lewis stipulations prepared
  • [ ] Three-year limitations period diaried (two years if a government vessel)
  • [ ] Damages model built; no punitives on unseaworthiness
  • [ ] Liens (LHWCA, ERISA, Medicare/MSP) identified and resolved
  • [ ] Release drafted to survive Garrett scrutiny

Primary Authority

Statutes and rules

Cases

Secondary sources

  • Schoenbaum, Admiralty and Maritime Law
  • Force & Norris, The Law of Seamen
  • Benedict on Admiralty
  • Restatement (Second) of Torts (for the background negligence framework)

Related UpLaw Resources

Related Guides & Articles

Related Checklists

Related Toolkits

This checklist is general legal information from UpLaw (uplaw.us), not legal advice, and does not create an attorney-client relationship. Maritime law is federal, but circuit law varies on seaman status, maintenance rates, prejudgment interest, and the primary-duty rule, and statutory section numbers in Title 46 have been recodified; verify current requirements and consult qualified counsel before acting.