As these employers know, the Jones Act is a federal statute which allows injured "seamen" a right to sue their employer for negligence. As such, the Jones Act allows seamen to recover damages for "pain and suffering," which often reach surprisingly high figures.

The Longshore and Harborworkers' Compensation Act is a federal workers' compensation statute that provides generous compensation benefits to certain maritime employees who are injured on the job, regardless of employer negligence. Seamen may also be entitled to sue under the general maritime law for negligence and unseaworthiness.

Exactly who is entitled to relief under the general maritime law, however, is changing once again and may directly affect your business. Generally, to obtain seaman status and qualify for benefits afforded by the Jones Act, the worker's injury must have occurred on the navigable waters of the United States, his duties must contribute to the function of the vessel or the accomplishment of its mission, and he must have a connection to a vessel in navigation that is substantial in both duration and nature.

Once seaman status is determined, Jones Act employees can sue their employer for negligence and the unseaworthiness of the vessel on which they were injured. If the employee is not a Jones Act seaman, he may be able to recover under the Federal Longshore and Harborworkers' Compensation Act.

A New Ruling Changes Everything
There are, however, employees that may fall neither within the Jones Act nor the Longshore Act, but still have a right to sue their employers for "general maritime law" negligence and unseaworthiness. So ruled the California Court of Appeals in Freeze v. Lost Isle Partners, 96 Cal. App. 4th 45 (2002).

The ramifications of Freeze are clear: Commercial diving contractors in California and other jurisdictions following the same rationale (i.e., the Fifth Circuit) are exposed to lawsuits from employees that suffer on-the-job injuries, even where the employee was neither a Jones Act seaman nor a Longshore worker.

This differs dramatically from the remedies available to traditional shore-based employees, which generally do not have the right to sue their employers for damages when they are injured on the job. Instead, they are compensated under various state workers' compensation laws. The California decision, along with the cases it follows, fly directly in the face of state workers' compensation statutes.

The plaintiff in Freeze v. Lost Isle Partners was employed as a laborer and construction worker at her employer's bar and resort located on a small island in the Sacramento River Delta region of California. She occasionally operated a small pontoon boat owned by her employer, which was used to transport supplies to and from the island. She was injured while mooring the small boat.

Freeze brought suit under the Jones Act, the Longshore and Harbor Workers' Compensation Act, and the general maritime law for negligence and unseaworthiness. Prior to trial, she abandoned her Longshore Act claim, conceding that she was statutorily precluded from coverage under the Act. Lost Isle's pre-trial request to strike Freeze's general maritime law claims for negligence and unseaworthiness was granted and the action proceeded to trial on her Jones Act claims only.

The jury returned a verdict for the employer in 45 minutes, specifically finding that Freeze was not a Jones Act seaman and therefore not entitled to a remedy. Freeze appealed, arguing that the trial court's refusal to instruct the jury on her general maritime negligence and unseaworthiness claims was prejudicial error.

The California Court of Appeal, relying on case law from the U.S. Court of Appeals for the Fifth Circuit (Green v. Vermilion Corp., 144 F.3d 332 (5th Cir. 1998)), agreed with Freeze and held that she was entitled to jury instructions on her general maritime law claims for negligence and unseaworthiness. The court relied upon a somewhat outdated legal theory known as the "Sieracki seaman doctrine." That doctrine, developed from Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), stands for the proposition that Longshore workers who are injured during the course and scope of their employment while performing "seaman's duties" are entitled to pursue causes of action for negligence and unseaworthiness against the vessel owner.

Pursuant to the California Court of Appeals ruling, even though Freeze was neither a worker covered by the Longshore Act, nor a "seaman" pursuant to the Jones Act, and had also been receiving state workers' compensation act benefits, she was entitled to sue her employer for negligence and unseaworthiness.

What's even more troubling for the commercial diving operator is that Freeze's employer was not a "traditional" maritime employer. Lost Isle Partners simply operated a resort located on an island. Courts would presumably be more willing to apply this "new" law to commercial diving operators where they have a readily identifiable connection to traditional maritime commerce.