Published: April 15, 2016
By: Richard Ogrodowski
Our law firm focuses its practice on helping injured people and families that have lost a loved one, including regularly handling transportation related matters such as maritime and admiralty cases involving seamen and individuals injured or killed on the rivers (the Ohio, Monongahela, Allegheny, Kanawha, and Mississippi) and railroad cases involving railroad workers like conductors, engineers, maintenance of way workers etc. injured or killed in Pennsylvania and West Virginia.
This post will focus on wrongful death and survival actions involving seamen and their employers. When a seaman is accidentally killed within the scope of his or her employment, his or her personal representative may bring a wrongful death and survival action against the employer (or other parties that caused the death).
Congress enacted the Jones Act, 46 U.S.C. § 30104, in 1920. By enacting the Jones Act, Congress gave the personal representative of a killed seaman the right to bring a wrongful death action and survival action against the deceased seaman’s employer for negligence. The Jones Act incorporated the same negligence standard and right to bring a wrongful death action and survival action afforded to railway employees in the Federal Employers’ Liability Act, 45 U.S.C. § 51 et al. (“FELA”).
As such, when a seaman is accidentally killed and his or her employer negligently caused the accidental death, the Jones Act applies rather than a state’s wrongful death or survival statutes. Nevertheless, this does not mean the personal representative cannot file the lawsuit in a state court. The Jones Act, through the FELA, 45 U.S.C. § 56, permits the personal representative of the decedent to file the wrongful death and/or survival action in either a state court or a federal court (a U.S. District Court). Therefore, a personal representative can elect to file a lawsuit for wrongful death in a Pennsylvania state court, such as Allegheny County, Beaver County, Butler County, Erie County, Greene County, Fayette County, Lawrence County, Washington County, Westmoreland County, etc., or a West Virginia state court, such as Brooke County, Cabell County, Hancock County, Harrison County, Kanawha County, Marshall County, Mason County, Monongalia County, Ohio County, Putnam County, Tyler County, Wetzel County, etc. Once filed in state court, the defendant employer cannot remove the Jones Act wrongful death action and/or survival action to a federal court. In other words, once the Jones Act wrongful death and/or survival action is filed in state court, the employer cannot then try to have the case moved to a federal court. However, if the personal representative wants, he or she is permitted to initially file the wrongful death and/or survival action under the Jones Act in federal court.
In addition to a wrongful death action and/or survival action under the Jones Act, the personal representative of the seaman may also within the same lawsuit make a claim for wrongful death and/or survival under the general maritime law of the United States. The basis for such a claim is unseaworthiness of a vessel, which has caused the accidental death. Under the general maritime law, a vessel owner has a duty to provide and maintain a seaworthy vessel, which means that the vessel and all of its parts and equipment are reasonably fit for their intended purpose and that the vessel is crewed by a sufficient number of seamen who are competent to perform the work assigned.