IMX: Navigating The COVID-19 Marine Legal Landscape
Maritime law has always been a world apart, with different remedies, precedents and rules than those available in the rest of the legal world.
When it comes to the coronavirus, as with everything else, the risks and effects differ for Jones Act employers, as Stas Levchinsky explained to an attentive virtual audience on the first full day of the Inland Marine Expo. After serving as a prosecutor for the St. Louis Circuit Attorney for six years, Levchinsky joined Fox Smith as a maritime law associate in 2017.
Levchinsky focused on four topics:
• a review of cases and precedents relating to maintenance and cure, a legal remedy peculiar to maritime law;
• liability and unseaworthiness claims under the Jones Act;
• the potential impact of state liability shield laws, which several states have enacted to protect employers from liability for COVID-19 exposure; and
• a look at what might happen in the future.
Levchinsky noted that maritime employers, like all employers, need to be especially concerned about COVID-19 liability. While most people who contract it have mild or even no symptoms, in a few cases the disease can result in costly and debilitating long-term damage to the heart, lungs, brain and blood vessels. Though the percentage of sufferers with those health complications is tiny, the potential cost exposure to an employer from even one could be great.
Maintenance And Cure
Maintenance and cure, Levchinsky reminded attendees, is a unique obligation of maritime employers to provide not only medical treatment to mariners who become sick or injured during their employment, but also to replace their lost income while they are being treated. “Courts favor seamen in dispute over maintenance and cure,” he said, meaning that the “close call goes to the runner” [i.e., the seaman].
Levchinsky cited several cases. In the 1996 Stevens v. McGinnis, the 6th Circuit established the “manifestation rule,” meaning that an employer owes maintenance and cure if an employee shows symptoms during his employment, whether or not he reports them. It also doesn’t matter whether or not the employee seeks treatment. The 2nd Circuit, in Messier v. Bouchard Transportation (2012) went even further, establishing the “occurrence rule,” which says it is enough for an employee to have had a disease during his employment, even without symptoms, if that can later be established. What’s important is whether the disease was present. The only exception is if the employee willfully conceals knowledge of his condition before hiring.
Finally, the 1st Circuit established (in Ramirez v. Carolina Dream Inc., 2014) that an employer is still liable for maintenance and cure even if the employee has a disease but doesn’t know it. It doesn’t matter where he contracted a disease, so preboarding screening is very important.
Attorneys often advise Jones Act employers to pay maintenance and cure, because willful failure to do so can result in costly punitive damages, a remedy that is not available in a claim of unseaworthiness. This doesn’t mean employers should be afraid to examine the circumstances of a seaman’s illness or injury, however.
If a sick seaman is claiming that a Jones Act employer is responsible for his COVID-19, he has two ways to go: he can claim negligence or unseaworthiness. To defend against a negligence claim the employer has to show that he acted “with reasonable care to avoid injury.”
On a claim of unseaworthiness, though, the standard is different, because under maritime law there can be negligence without fault: if an employer contributed to a mariner’s illness in any way, even if only in part, he may still be liable.
Asbestos Cases As A Guide
Levchinsky said asbestos exposure cases can be a good guide to what COVID-19 exposure cases might look like, since the airborne mechanism of exposure to illness is similar in both types of cases. In general, he said, such cases are fact-specific. In one case, an Ohio court ruled that exposure to asbestos cannot be presumed merely because it was present in a workplace, although it left the jury free to make its own inferences. But in a 6th Circuit case from 1993, the facts showed that asbestos was so pervasive aboard a vessel over a period of many years (with employees waking each morning covered in asbestos dust) that it met the tougher causation standard.
To minimize liability, it’s a good idea to educate all people onboard about signs and symptoms of COVID-19. Have a written-out mask policy, do onboard monitoring and screening and be aware of your obligations to notify agencies of any outbreaks.
To manage a confirmed case, a company has three options: a full crew change; working quarantine; or temporarily discontinuing operations.
In the wake of COVID-19, some states have passed liability shield laws designed to protect employers from lawsuits over virus exposure: especially employers deemed essential, like packing plants. These state laws have no effect on maintenance and cure obligations arising from maritime law, Levchinsky said.
However, a federal bill called the Safe to Work Act is currently being considered in Congress. If passed, it would become the exclusive cause of action in court for COVID-exposure lawsuits against employers, superseding even the Jones Act. The bill would offer employers a high bar of protection, even allowing them to sue employees for “meritless” cause of action. Levchinsky admitted, though, that it is unlikely to pass the House unless it flips to Republican control in November.
The best way for employers to protect employees from the virus and themselves from liability is to follow the CDC recommendations to establish procedures, educate their workforce, equip employees to protect themselves and empower them to take charge and report unsafe conditions.