Personal injury claims related to seafaring
-with special emphasis on German and US jurisdictions-
Diplomarbeit zur Erlangung des Grades eines
Diplom-Wirtschaftsingenieur für Seeverkehr (FH)
an der
Hochschule Bremen
Fachbereich Nautik und Internationale Wirtschaft
Studiengang Nautik
vorgelegt von:
Matrikel Nr.:
Anke Wiedau
91985
aus:
Theodor-Storm-Str. 13
28201 Bremen
Tel: 0421-5229643
Referent:
Prof. Kapt. P. Irminger
Korreferent:
Kapt. C. Schröder
Bremen, 08.04.2005
Summary
SUMMARY.......................................................................................................... I
LIST OF DIAGRAMS........................................................................................ IV
LIST OF ANNEXES ........................................................................................... V
.-LIST OF ABBREVIATIONS............................................................................ VI
DEFINITIONS .................................................................................................. VII
1. INTRODUCTION........................................................................................ - 1 2. ORGANISATIONAL STRUCTURE OF P&I CLUBS ................................. - 3 2.1 Necessity of P&I Clubs .....................................................................................................- 3 2.2 P&I Coverage .....................................................................................................................- 4 2.2.1 Liabilities in respect of the seamen..............................................................................- 5 2.2.2 Liabilities in respect of Supernumeraries.....................................................................- 5 2.2.3 Liabilities in respect of Passengers .............................................................................- 6 2.2.4 Liabilities in respect of Third Parties ............................................................................- 7 2.3 Claim ranking.....................................................................................................................- 7 2.4 First steps after a personal injury ...................................................................................- 8 -
3. PERSONAL INJURY ............................................................................... - 11 3.1 Reasons for personal injuries........................................................................................- 12 3.2 Crew Illness .....................................................................................................................- 13 3.3 Medical screening ...........................................................................................................- 13 -
4. STATISTICAL VIEW................................................................................ - 16 4.1 Location of personal injuries .........................................................................................- 16 4.2. Rank of injured persons ................................................................................................- 21 -
5. CONSEQUENCES OF PERSONAL INJURIES ...................................... - 22 5.1 Consequences for the Seafarer .....................................................................................- 22 5.2 Consequences for the Shipowner .................................................................................- 22 -
6. COMPENSATION AND REPATRIATION ............................................... - 23 I
6.1 The International Transport Worker’s Federation (ITF) contract ...............................- 23 6.1.1 Medical Attention § 16 ...............................................................................................- 23 6.1.2 Sick pay § 17 .............................................................................................................- 23 6.1.3 Loss of Life, Death in Service § 19 ............................................................................- 24 6.1.4 Disability § 21.............................................................................................................- 24 6.1.5 Repatriation § 23........................................................................................................- 26 6.2 The Philippines Overseas Employment Administration (POEA) contract ................- 26 6.2.1 Section 19 Repatriation .............................................................................................- 26 6.2.2 Section 20 Compensation and Benefits.....................................................................- 26 6.2.2.1 Compensation and Benefits for Death ...............................................................- 26 6.2.2.2 Compensation and Benefits for injury or illness .................................................- 27 6.3 The contract of a German Shipping Company (for a Nautical Officer)......................- 29 6.3.1 The German Seaman Code.......................................................................................- 30 6.4 Comparison .....................................................................................................................- 32 6.5 Case A: Repatriation.......................................................................................................- 33 6.5.1 The Costs...................................................................................................................- 34 -
7. NEGLIGENCE ......................................................................................... - 36 7.1 The US approach to negligence ....................................................................................- 36 7.2 The American Civil Court system..................................................................................- 37 7.3 The power of the jury......................................................................................................- 38 7.4 Damages ..........................................................................................................................- 39 7.5. The German approach to negligence...........................................................................- 40 7.5.1 Compensational functions .........................................................................................- 41 7.5.2 Satisfactory function...................................................................................................- 42 7.6 Degree of guilt .................................................................................................................- 43 7.7 The German court system..............................................................................................- 43 7.8 Damages ..........................................................................................................................- 45 -
8. APPLICABLE LAW ................................................................................. - 46 8.1 The Jones Act..................................................................................................................- 46 8.1.2 Wrongful death...........................................................................................................- 51 8.2 DOHSA – Death on the High Seas Act ..........................................................................- 52 8.3 Athens Convention 1974 ................................................................................................- 53 8.4 The Montreal Convention ...............................................................................................- 55 8.5 Personal claims by other persons.................................................................................- 58 8.6 The Longshore and Harbor Worker’s Compensation Act (LHWCA)..........................- 59 -
9. CLAIMING IN THE US............................................................................. - 61 -
II
10. EXAMPLES FOR PERSONAL INJURY CASES AND CLAIMS ........... - 62 10.1 Case C: A broken line ...................................................................................................- 62 10.2 Case D: Accidental Death.............................................................................................- 62 10.3 The Andersen Case.......................................................................................................- 63 10.4 The Sosa Case...............................................................................................................- 64 -
11. CONCLUSION ....................................................................................... - 67 ANNEX 1 ITF COMPENSATION SCALE .................................................... - 69 ANNEX 2 POEA COMPENSATION SCALE ............................................... - 78 ANNEX 3 GERMAN COMPENSATION SCHEDULE.................................. - 89 ANNEX 4 ATHENS CONVENTION SIGNATORIES ................................... - 90 ANNEX 5 MONTREAL CONVENTION SIGNATORIES .............................. - 93 ANNEX 6 EXAMPLES FOR LOW, MEDIUM AND HIGH COMPENSATION
AWARDS BY GERMAN COURTS .............................................................. - 99 BIBLIOGRAPHY........................................................................................ - 102 CONTRACTS, LAWS, ACTS, CONVENTIONS ........................................ - 105 LIST OF DIALOG PARTNERS.................................................................. - 105 -
III
List of diagrams
Diagram 1: Claim Ranking....................................................................................... - 8 Diagram 2: The Hit List........................................................................................... - 12 Diagram 3: Crew injury distributed by incident of location (UK P&I 1992)..... - 17 Diagram 4: Location of person at time of injury (Seacare 2003-04) ............... - 17 Diagram 5: Accepted claims by location on the ship (Seacare 2003-04) ...... - 18 Diagram 6: Accidents to crew by location on vessel (MAIB 2003).................. - 19 Diagram 7: Injured persons distributed by location on board (BSU 2003) .... - 20 Diagram 8: Killed persons distributed by location (BSU 2003)........................ - 20 Diagram 9: Claims distributed by occupational grouping (Seacare 2003-04)- 21 Diagram 10: Injuries distributed by occupational grouping (MAIB 2003)....... - 21 -
IV
List of Annexes
Annex 1
Annex 2
Annex 3
Annex 4
Annex 5
Annex 6
ITF Compensation Scale ............................................. -64POEA Compensation Scale ........................................ -73German Compensation Schedule ............................... -84Athens Convention Signatories ................................... -85Montreal Convention Signatories ................................ -88Examples for low, medium and high
compensation awards by German courts .................... -94-
V
List of Abbreviations
BSU
Cf
DOHSA
IMF
ITF
LHWCA
MAIB
MV
P&I
POEA
SDR
SeeBG
UK
US
Bundesstelle für Seeunfalluntersuchung
Confer, Compare
Death on the High Seas Act
International Monetary Fund
International Transportation Worker’s
Federation
Longshore Harbor Worker’s Compensation Act
Marine Accident Investigation Branch
Motor Vessel
Protection and Indemnity
Philippine Overseas Employment
Administration
Special Drawing Rights
See Berufsgenossenschaft
United Kingdom
United States of America
VI
Definitions
(according to the North of England P&I Club Rules)
Entered Ship:
A ship which has been entered for insurance
in this class of Association.
Supernumerary
A relative of a Seaman, or any other person
whom a Member has agreed to maintain or
carry on board an Entered Ship (except
Passenger) and including persons engaged
under articles of agreement for nominal pay.
Passenger
A person carried on board an Entered Ship
pursuant to passage contract.
Seaman
A person (including the Master) engaged under
articles of agreement or otherwise contractually
obliged to serve on board an Entered Ship
(except persons engaged only for nominal pay)
including a substitute for such person and also
including such persons while proceeding to or
from such ship.
VII
1. Introduction
Being at sea does not only mean being away from home, family and friends for a long
period of time, it does also mean being away from doctors and hospitals while the ship
is sailing. Of course there are also ships that have doctors on board, i.e. cruse liners,
but most common sea-going vessels do not have a doctor.
A doctor is only required for ships with more than 75 persons on board going on
international trade, as well as ships on coastal trade, with a journey duration of more
than 3 days and more than 100 employees on board.1
Each Nautical Officer has a certain medical training he went through when studying,
but if it this knowledge is never or only rarely needed most of it is forgotten soon.
If asked, the majority of Nautical Officers will probably admit that they hope to never
get into any situation when real medical assistance is needed and the ship is days
away from the next port.
Being at sea means you are not able to call an ambulance or go to the doctor. What
people take for granted ashore does not apply to seamen.
However, accidents happen, seamen get injured when working on their ship,
sometimes even before boarding; on their way to their ship. They get injured when
going ashore. Just the same as shore workers, who come aboard to handle the cargo,
might be injured while working onboard. Passengers, Pilots and visitors can be
potential victims, too.
But how are these injuries covered? Who takes care of the medical costs? Who makes
sure the injured person gets adequate compensation for their pain and suffering?
What if the accident (or even the death) of a person was caused by negligence? Is it
possible for the seaman to go to court and try to get a higher compensation than he
would get without suing? What if the injured person stays disabled due to the accident?
It seems that even though modern ships have a high safety standard accidents cannot
be wholly avoided. The smallest carelessness can lead to an accident just the same as
improper working gear or unsafe working conditions on board.
1
Cf: http://www.see-bg.de/schiffssicherheit/formulare/#vorschriften, §15, March 31st ,2005
1
There are numerous possibilities for accidents to happen, and they do. More and more
seamen who were personally injured try to get a higher compensation than the one that
is granted in their contract.
The UK P&I Club states that “The shipping industry is paying out more than $ 300
million a year to meet seafarers’ claims for injury, illness and death.”2
This shows the great extent of personal injury claims that are related to seafaring.
2
Quote from UK P&I Club handout, received through Mr. Macke from Pandi Services Hamburg
2
2. Organisational structure of P&I Clubs
Most P&I Clubs are non-profit organisations (in the form of a Mutual), which are run for
the benefit of their members. The members pay sufficient premiums and if required,
additional calls to cover for expenses of the Club. In return, the member might get a
refund or pay a lower premium when the money was more than sufficient to pay all the
Club’s costs.
Each Club member is at the same time insured and insurer and has influence on the
organisation by voting at the Club’s General Meetings.
These Meeting take place at least once a year, but may also be held several times a
year, depending on necessity and Club’s statutes. During these meetings the Club
members vote a Broad of directors (which mostly consists of Committee and Executive
Committee) and consists of the members itself. “The Board of Directors will delegate
parts of its powers to the administration or management of the Club who works full time
on the day-to-day business of the Club.“3 Additionally the Club has correspondents in
all major ports of the world to assists the Club locally, when problems arise.
The Committee’s most important tasks are deciding about the premium ratings, the
scope of cover, closing open policy years and establishing principles for the
management of the funds.
The Executive Committee handles all the matters that are not covered by the
Committee, such as approving claim compensations, engaging and dismissing
personnel, managing the Association’s funds and supervising the administration or
management of the Club.4
2.1 Necessity of P&I Clubs
The first mutual protection Club, the Shipowners’ Mutual Protection Society was
founded in 1855. Other protection societies were founded, but these Clubs did not
provide indemnity cover until in 1874 the first indemnity Club was founded and the
protection societies amended their rules, so that they would also cover indemnity.
Through these amendments, the Clubs thereby became P&I Clubs.5
3
Quote from: Gold, E.: Gard Handbook on P&I insurance, 5th edition, 2002, page 102
Cf: Gold, E.: Gard Handbook on P&I insurance, 5th edition, 2002, page 98ff
5
Cf: Gold, E.: Gard Handbook on P&I insurance, 5th edition, 2002, page 66f
4
3
If a personal injury occurs on board, the ship-owner will have to pay for all expenses
that occur related to this accident. He has the legal obligation to make sure, the sick or
injured person gets medical care and if necessary will be taken to a hospital and
brought home when he is able to travel again. Depending on the contract, he might
also have to pay for any medical expenses that build up in the persons’ home country.
The ship-owner will have to pay all cost that arise from the person’s injury or death.
Since these costs can reach very high sums, ship-owners are insured through P&I
Clubs. They will pay back all costs - less an agreed deductible - to the ship-owner.
P&I Clubs inter alia cover medical costs that arise from sickness, injury or death.
Furthermore, they pay for repatriation costs, substitution costs, sick wages,
compensation costs and funeral costs.
These costs may reach a very high sum, and might be a great burden to a single P&I
Club. To compensate these costs the International Group of P&I Clubs was established
in 1981. “Although P&I Clubs maintain their independence, autonomy and
competitiveness they […] cooperate […] as members”6. The purpose of this group is
that costs that exceed a certain amount will not have to be covered by the insuring P&I
Club but will be distributed to all Clubs.
”There are currently 13 P&I Clubs who are members of the International Group. This
group provides liability insurance for more than 90 per cent of the world’s shipowners.”7
2.2 P&I Coverage
Personal injury claims represent the second most expensive class of claims paid by
P&I Clubs.
The risks that are covered for personal injuries are liabilities in respect of the seamen,
liabilities in respect of passengers and liabilities in respect of third parties. The rules of
P&I Clubs concerning these liabilities are quite similar in wording and I will therefore
take the important parts of the North of England P&I Club Rules 2004/2005 as an
example to show what is covered.
6
7
Cf: Gold, E.: Gard Handbook on P&I insurance, 5th edition, 2002, page 71
Quote from: Gold, E.: Gard Handbook on P&I insurance, 5th edition, 2002, page 71
4
“Unless otherwise agreed8 between the Member and the manager, the Member shall
be indemnified by the Association against the following liabilities…”9
2.2.1 Liabilities in respect of the seamen10
“(a) Liabilities to pay damages or compensation for death, personal injury or illness of
any Seaman of an Entered Ship and hospital, medical, funeral and other expenses
necessarily incurred in relation to such death, personal injury or illness.
(c) Statutory liabilities to pay compensation to any Seaman of an Entered Ship caused
in consequence of the actual or constructive total loss of the ship.
(d) Repatriation and substitution expenses necessarily incurred as a consequence of
death, personal injury, illness or desertion of any Seaman of an Entered Ship. […]
(f) Where a Seaman has suffered injury whilst on leave, any cover which would
otherwise be extended by this Rule shall arise only under the Entry of the last vessel
on which the Seaman served prior to suffering the injury.”11
2.2.2 Liabilities in respect of Supernumeraries12
“Liabilities, costs and expenses in respect of Supernumeraries carried on an Entered
Ship as if such persons were Seamen and covered under Rule 19(1).”13
8
These are standard rules of the P&I Club, but it is also possible that a Member likes to vary the rules in
compliance with the Managers. It is possible to get a lower coverage for less money as well as extensive
coverage for a higher amount of money.
9
Quote from North of England P&I Club Rules 200472005, page 23
10
Cf: Rule 19(1) of North of England P&I Club Rules 2004/2005, page 23
11
Cf: Rule 19(1) of North of England P&I Club Rules 2004/2005, page 23f
12
Cf: Rule 19(2) of North of England P&I Club Rules 2004/2005, page 24
13
Cf: Rule 19(2) of North of England P&I Club Rules 2004/2005, page 24
5
2.2.3 Liabilities in respect of Passengers14
“(a) Liabilities to pay damages for death, personal injury or illness of any Passenger on
an Entered Ship.
(c) Liabilities to pay damages or compensation to any Passenger on board the Entered
Ship arising as a consequence of a casualty to that Ship, including the cost of
forwarding such Passenger to destination or return to port of embarkation and of
maintenance of such Passenger ashore. For the purposes of this Rule 19(3)(c) a
casualty involving either:
(i) collision, stranding, explosion, fire or any other cause affecting the physical
condition of the vessel so as to render it incapable of safe navigation to its
intended navigation to its intended destination; or
(ii) a threat to the life, health or safety of passenger.
Provided Always That in Rule 19(3):
(A) the Association shall assume no liability in any case in respect of death, personal
injury, […] by reason of carriage by air except where such liability occurs:
(i) during the repatriation by air of injured and sick Passengers or of Passengers
following a casualty to the Entered Ship as defined in Rule 19(3)(c) above, or
(ii) during shore excursions from the Entered Ship but always subject to the
Proviso (B) below;
(B) the Association shall assume no liability in any case in respect of the contractual
liability of a Member for death or injury to a Passenger whilst ashore on an excursion
from the Entered Ship in circumstances where either:
(i) a separate contract has been entered into by the Passenger for the
excursion, whether or not with the Member, or
14
Cf: Rule 19(3) of North of England P&I Club Rules 2004/2005, page 24
6
(ii) the Member has waived any or all of his rights of recourse against any subcontractor or other third party in respect of the excursion;
(C) the ticket of passage shall relieve the Member of liability, costs and expenses to the
maximum extent permitted under the appropriate law. […]”15
2.2.4 Liabilities in respect of Third Parties16
“Liabilities to pay damages or compensation for death, personal injury or illness of any
person (other than those specified in Rules 19(1), (2) and (3)). […]”17
2.3 Claim ranking
The majority of claims are caused by crew members, which is logical if we consider the
number of crew members worldwide plus the fact that crew members spend
significantly more time aboard than any other person who might file a claim. The
duration of time spend aboard obviously brings along a higher risk of being injured or
getting sick while being on board. Another fact is, that crew members are exposed to
certain risks when working on board. Bad weather conditions can lead to dangerous
situations, but there are also certain work tasks on board that contain a risk. Another
reason for the high number of claims by crew members is that many crew members
heard about the enormous sums that can be reached by suing in the US and find it
very tempting to at least try to get a similar compensation for their personal injury.
The second important category is passenger claims. Individual injuries lead to claims
against ship-owners. Although passenger claims are only the second category when it
comes to claims it is the category with the highest risk. The sums that will have to be
paid if something goes badly wrong on any of the big cruise ships would be
horrendous.
15
Cf: Rule 19(3) of North of England P&I Club Rules 2004/2005, page 24f
Cf: Rule 19(4) of North of England P&I Club Rules 2004/2005, page 25
17
Cf: Rule 19(4) of North of England P&I Club Rules 2004/2005, page 25f
16
7
The fact that more and more younger people spend their holidays on cruise liners has
led to a decrease of injuries and therefore the number of claims by passengers fell. On
the other hand the value of these claims rose.
The last part of injury claims is caused by third parties, which are persons carried on
board, people working on board while the ship is in port, people visiting or persons who
live in vicinity of ports. The biggest part of those third party claims is taken by stevedore
or longshoremen claims in the United States.18
The following diagram is taken from a claim analysis statistic from the UK P&I Club,
and although the statistic is from 1992 it shows, that more than 10 years later there is
nearly no difference in the distribution of the different types of claims. Still crew injury
and crew illness account for the majority of claims, as well as the highest value of
claims.
Diagram 1: Claim Ranking
Source: http://www.ukpandi.com/ukpandi/resource.nsf/Files/AMC1992/$FILE/AMC1992.pdf
2.4 First steps after a personal injury
To avoid any claims or to be prepared if the injured person files a claim against the
shipowner, the steps following a personal injury are very important.
Of course the most important point is to take care of the sick or injured person first. If
the person did not have an accident, but is sick it is important to keep a detailed
18
Cf:http://www.gard.no/portal/page?_pageid=33,132064&_dad=gard&_schema=PORTAL&p_url=http
%3A//www.gard.no/gard/Publications/GardNews/RecentIssues/gn158/art_3.htm&MainMenuID=5&Sub
MenuID=40, March 21st , 2005
8
medical record and to write down when (date and time) the first signs of sickness
occurred. A medical record book should be kept at any time, so that all symptoms can
be written down and the medical condition of the patient can be described. All drugs
that the person already takes for whatever illness he has should be written down, as
well as all drugs that he gets while being aboard. When a doctor is contacted this
should be noted, just like the advice he gave for the treatment of the sick person.
When dealing with a sick person it is important to find out if the illness occurred on
board or if it has been there before boarding the ship, but was not noticed on the preemployment medical check. Unfortunately, it is sometimes hard to say whether or not
an illness occurred due to a health condition that has already existed before being
employed.
Injuries even require a more extensive check and investigation. After taking care of the
injured person and writing down all important medical conditions and drugs that were
given to the person it is important to find out if there were any witnesses to the
accident. If so, those persons should write their own report of what they have seen.
Secondly, it is important to put everything on film; the place where the accident
happened should be photographed, such as any circumstances that could have led to
the accident, i.e. oily surfaces, broken ropes, damaged working gear, etc.
Another important aspect is whether or not the injured person was wearing and using
the proper safety clothing and gear.
A few other questions are important to investigate to find out more about the accident.
…Did the injured person get a familiarisation when boarding the ship and before
working with certain machinery? Did he read and sign this familiarisation sheets? Did
he read the manual before operating the machinery and the additional safety
instructions?
Has someone given him an order that led to the accident or did he act on his own? Has
the person who gave him the order the authorisation to do so?
Could the victim have foreseen the accident, did the accident happen because of
someone’s carelessness? Did he tell anyone about his job, i.e. when entering enclosed
spaces, and was the work carried out by enough personnel. Was he doing a job that
would have required a second person or was he even ordered to do the job by himself
instead of two persons?
All those questions should be considered and asked and the answers be written down
in the master’s report. The master should also be very accurate about the accident
report and the witness report(s). Every information taken could be helpful to avoid any
later claim or, if it comes to a claim, it will be easier to rely on written information that
9
was taken right after the accident happened rather than trying to remember all the
details after a long time.
Furthermore, the ship-owner should keep all records related to the accident and
payments made, on behalf of the crew member for a minimum of 3 years.
The same accounts for the injured person. The victim should take witness statements
and write down everything that is useful and he remembers, in case his superior acted
without taking the proper precautions for a certain work or gave wrong orders that
caused the accident. He should make sure pictures are taken from the accident site
and -if existing- damaged working gear or machinery.
10
3. Personal Injury
For insurance brokers personal injury means injury to a third person, but not to crew
members. If crew members get injured they talk about crew injury or crew illness.
There are different definitions of what a personal injury is. To keep it simple, someone
might just say, that physical harm to a person is a personal injury. Some definitions
also include non-physical harm. Personal injury due to non-physical harm is not
relevant for this work and the aspect will therefore be neglected. In this work there will
be no difference between personal injuries and crew injuries. When talking about
personal injuries in this work there will be no distribution between injuries that
happened to crew and third parties.
11
3.1 Reasons for personal injuries
There are numerous reasons for Personal injuries to happen. A rating from the UK P&I
shows their Hit List of the most common types of personal injury.
Diagram 2: The Hit List19
Slips and falls
Inadequate footwear, oil or grease deposits on floors, alcohol excess, poorly marked or
defective steps, descending steps and ladders the wrong way round, inadequate
lighting, inadequate or non existent staging, over-stretching – all these make slips and
falls the top of the hit list.
Falling object injuries
Spanners in the engine rooms, cargo falling from nets, collapsing booms all feature
regularly. The tremendous momentum involved usually makes such injuries very
serious.
Strains
Back problems, hernias, damaged ligaments are all consequences of strains caused by
failing to size a job up properly; by one man trying to do a job requiring two and by
failing to use devices designed to assist with lifting and moving heavy objects.
Passengers
Passenger accidents occur so frequently seemingly because of the sense of security
generated on board ship. Passengers tend to treat the ship as an hotel, not a means of
transport and do not expect to adapt their life style at all. Passenger claims also arise
from major casualties such as grounding, fire, and other incidents.
Burns, fire and explosion injuries
Carelessness in the galley and chemicals spills are common causes of burns. Smoking in
cargo and accomodation spaces, electrical faults, poorly treated meal cargoes and
engine room incidents lead the way for fire. Hot work and naked lights where explosive
mixtures of gas have built up put both the ship and surrounding neighbourhood in peril.
Machinery and equipment injuries
Missing guards, lack of maintenance, over-loading and other abuse, want of training all
make machinery and equipment potentially fatal to their operators; accidents are all too
frequent.
Enclosed spaces
Entry to unventilated spaces keeps on happening. It frequently goes wrong and usually
causes multiple fatalities because the urge to rush to the aid of a colleague in distress is
so strong.
Any of the above named reasons may lead to a personal injury of either crew or
passengers and might also possibly lead to a claim. Not mentioned in the above list are
claims based on crew sickness, though this, according to the North of England P&I
Club “…accounts for a substantial number of claims”.20
19
20
Cf: http://www.ukpandi.com/ukpanki/injopool.nfs/HTML/LPNews6, March 21st, .2005
Quote from http://195.173.17.24/risk/publikations/newsletter/specials/5/5.php, March 24th , 2005
12
3.2 Crew Illness
Those cases of crew illness claims can be dealt with rather quickly, because of the fact
that only certain sicknesses are job-based. The Philippines Overseas Employment Act
(POEA) contract; the contract for seafarers from the Philippines; even includes a
certain section (Section 32-A)21 which describes in detail which diseases are
occupational diseases, given that the seaman was exposed to a risk that causes it and
the disease occurred during his employment.
To avoid unjustified crew illness claims the ship-owner should make sure the seafarer
has to undergo a sufficient pre-medical check before being employed.
In the Signals Special of August 2000 the North of England P&I Club states, that “Over
the past 5 years crew illness claims have accounted for over 5% of the total cost of
claims, made to the Association, compared with a figure of about 14% for crew injury
claims, so they are very significant.”22
3.3 Medical screening
To avoid these costs ship-owners are advised to make sure they run standardized
medical test before employing any seafarer.
According to § 81 of the German Seaman Code seamen have to undergo a medical
test before they are permitted to board the ship. Only certain doctors who are approved
by the SeeBG are allowed to run these medical checks. These doctors take the test
according to the “standards for the qualification for maritime service in Germany”23 to
ensure everyone gets to make the same required test.
This choice of certain doctors and clinics where these test are taken gives a relative
security to the ship-owner that the seaman is healthy and capable of the stress that his
work on board brings along. Of course if the seaman deliberately withholds information
of an illness from the doctor there is no guarantee that this illness will be discovered
during his check-up.
If this happens and the seaman files a claim due to this unannounced sickness and
after investigation it is proven that the seaman’s illness was a pre-employment one, he
will of course have no right to receive compensation.
21
Compare „Standard Terms And Conditions Governing The Employment Of Filipino Seafarers OnBoard Ocean Going Vessels”, page 36ff and Annex 2
22
Quote from http://195.173.17.24/risk/publikations/newsletter/specials/5/5.php, March 24th, 2005
23
Quote from http://www.seekasse.de/arbeitgeber/download/Merkblatt_17_03_05.pdf, March 27th , 2005
13
In other countries than Germany medical pre-employment checks might be carried out
differently and may vary from our standard.
The North of England P&I suggests to extend the standard tests for seafarers and to
run special tests to find out about any existing illnesses.
“The most common problems which may lead to claims if they are not identified prior to
the commencement of the period of employment include:
ƒ
Hepatitis
ƒ
Hypertension
ƒ
Heart disease
ƒ
Liver disorders
ƒ
Diabetes
ƒ
Psychological disorders”24
The Club also recommends tests for HIV and kidney function, and routine alcohol and
drug testing should be considered.25
Although this might give the ship-owner a greater security about the medical condition
of their employees, it also means rising costs for medical tests. Though compared to
the costs for crew sickness claims, this might be worth to consider.
On the other hand there is the seaman who will have to let the doctor run all these tests
on him. Is it really necessary to check any seaman in this way, to take him apart just for
a job?
No matter if the ship-owner decides for a standard or an extended medical check he
has to make sure that he selects qualified and objective doctors and clinics in whatever
countries he likes to carry out this medical checks for his future employees.
Some important points he should consider are:
ƒ
“Well qualified doctors being permanently in attendance as well as fully qualified
nursing staff, lab technicians, dentists and opticians and staffing levels sufficient
to cope so that corners would not be cut at busy periods.
ƒ
Clean and well equipped clinics with the necessary apparatus needed for
stringent medical testing.
ƒ
24
25
More stringent testing of candidates over the age of 40.
Quote from http://195.173.17.24/risk/publikations/newsletter/specials/5/5.php, March 24th , 2005
Cf: http://195.173.17.24/risk/publikations/newsletter/specials/5/5.php, March 24th , 2005
14
ƒ
Retention of medical records for at least a 5 year period so that the clinics can
carry out reviews and follow ups, confident in the knowledge that they have a
full accurate history to hand.
ƒ
Employment by other agencies for example, well known multinational
companies or flag States such as Norway, who demand high standards and
who take it upon themselves to inspect the facilities on a regular basis to ensure
that the standards are being maintained.
ƒ
Evidence of self imposed quality control such as ISO9002 accreditation, or
working seriously towards same.
ƒ
A fixed scale of fees evidencing the various levels of examinations available
and the costs of same.
ƒ
Availability of facilities for regular inspection. Good clinics will be very willing to
allow access to view facilities and to discuss the services available.
ƒ
In the Philippines, strict interpretation of the Medical Rating System for
Overseas Contract Workers and Seafarers with a fixed procedure for dealing
with candidates who are unfit according to the rating system.”26
26
Quote from: http://195.173.17.24/risk/publikations/newsletter/specials/5/5.php, March 24th , 2005
15
4. Statistical view
Even though there are a lot of seafaring nations that have annual reports containing
statistics about personal injuries at sea, there is no world-wide statistic about who gets
injured, distributed by rank, the places on board where injuries occur, which injuries are
most frequent, which nationality files most claims, etc.
While researching, the author found only one statistic that takes an overall look and
includes several nationalities. That statistic was published by the UK P&I in 1992.
Unfortunately, no newer publication containing the same information could be otbained.
The other reports found were from the Marine Accident Investigation Branch (MAIB),
UK; the Seafarers Safety, Rehabilitation And Compensation Authority, Australia
(Seacare) and the Bundesstelle für Seeunfalluntersuchung (BSU), Germany.
All these reports are from 2003, since the reports for the last year have not been
published yet. Even though each nation reports about injuries in their annual statistical
analysis each of them has a different approach. Some have more detailed statistics
and other concentrate more on collisions than on personal injuries and their results.
4.1 Location of personal injuries
First, to give an overview, statistics of where personal injuries happen mostly are
presented. Comparing the statistics from 1992, where there is no distribution by injury
and death, with statistics from 2003 from the different organisations named above.
16
Diagram 3: Crew injury distributed by incident of location (UK P&I 1992)
Source: http://www.ukpandi.com/ukpandi/resource.nsf/Files/AMC1992/$FILE/AMC1992.pdf
Diagram 4: Location of person at time of injury (Seacare 2003-04)
Duty on ship
90,1%
On duty on the ship on break
On Duty away from the ship
Off Duty on the ship
Off duty away from the ship
Traveling to or from a ship
1,5%
0,6%
0,6%
0,6%
1,5% 1,1% 3,8%
Study
Other
Source: own diagram with data from: www.seacare.gov.au/annual-report-2004/seacare-2004-annualreport.pdf
17
Diagram 5: Accepted claims by location on the ship (Seacare 2003-04)
7,1%
Accomodation Block
3,3%
45,6%
Bridge
Deck Spaces
2,7%
Galley
Gangway/pilot
20,9%
Location not relevant
Machinery Spaces
Stairs
Not on ship
7,7%
2,7%
5,5%
4,4%
Source: own diagram with data from: www.seacare.gov.au/annual-report-2004/seacare-2004-annualreport.pdf
18
Diagram 6: Accidents to crew by location on vessel (MAIB 2003)
Source: www.maib.gov.uk/publications/annual_reports/annual_report_2003.cfm
19
Diagram 7: Injured persons distributed by location on board (BSU 2003)
20%
Deckspace
Holds/Loading area
Engineroom
12%
56%
Deck-Machinery spaces
Accomodation
4%
8%
Source: own diagram with data from: http://www.bsu-bund.de/pdf/statistik/statistik_02-03.pdf
Diagram 8: Killed persons distributed by location (BSU 2003)
16,7%
16,7%
Deckspaces
Holds/loading spaces
Engineroom
33,3%
Decksmachineryspace
33,3%
Source: own diagram with data from: http://www.bsu-bund.de/pdf/statistik/statistik_02-03.pdf
Comparing the diagrams, it is obvious, that every national report is different. Some are
more differentiated and other show just a smaller range of comparisons. The MAIB
statistic shows a much more differentiated statistic of where accidents happen,
whereas the BSU statistic has a more clearly arranged figure.
Comparing the most frequent places for injuries, one can see that the deck spaces and
engine/machinery spaces are the ones where most injuries/deaths occur.
Even though the diagram No. 3 is over 10 years old, it corresponds with the nowadays
statistics. Weather deck and Engine room were the places where most accidents
happened, this fact has not changed until today. Deck- and machinery spaces are the
places that range within the top three, only the MAIB statistic diverts. Their first ranks
are taken by galley and accommodation (crew and passenger), which might be
because they have more cruise ships involved in their statistic.
20
4.2. Rank of injured persons
Diagram 9: Claims distributed by occupational grouping (Seacare 2003-04)
60%
50%
40%
30%
20%
10%
0%
Ratings
Catering
Engineers
Deck officers
Source: own diagram with data from: www.seacare.gov.au/annual-report-2004/seacare-2004-annualreport.pdf
Diagram 10: Injuries distributed by occupational grouping (MAIB 2003)
50,00%
40,00%
30,00%
20,00%
10,00%
0,00%
Ratings
Other crew
Engineers (incl.
Chief Ing.)
Deck officers
(incl. Master)
Source: www.maib.gov.uk/publications/annual_reports/annual_report_2003.cfm
These two diagrams from the Seacare and MAIB statistic show quite similar figures
about the ranks that got injured/filed claims. The statistics show, that most
injuries/claims are by ratings, which is probably because most crew members are
counted as ratings. The number of engineers and deck officers on board is much
smaller and therefore they account for only a small number of injuries/claims.
Unfortunately the P&I statistic does only divide the crew injuries by nationality and not
by rank and the BSU has none such statistic at all.
21
5. Consequences of personal injuries
5.1 Consequences for the Seafarer
Personal injury and illness have a great effect on the injured person and might have
consequences that were not obvious right away.
Firstly, an illness or injury of a loved one always affects the close family and friends.
Secondly, there is the mental strain and suffering caused by the changed situation. The
victim’s life might be changed forever; he might never be able to return to his old
everyday life. The injury might lead to a mental or physical handicap or to disability.
There are not only additional costs to be covered, i.e. during recuperation time, but also
a loss of earnings.
A decrease of life expectancy might be a consequence as well as a loss of leisure
activities.
If the victim does not recover from his injury/illness and stays disabled, he might not be
able to continue his career at sea. He might have to start a job ashore that is not paid
as well as his recent job. Because of the less money earned, he would have to change
his standard of living.
However, the worst consequence is, if the injury or illness leads to the death of the
person.27
5.2 Consequences for the Shipowner
In general, personal injuries or illness to any person means extra costs and lost time for
the shipowner.
Costs in connection with the medical care of injured or ill seaman, costs to get a
replacement and time to train the new crew member. Time lost by deviation from the
original route to get the injured to a hospital fast, as well as costs that occur through
this deviation.
Time will be lost when dealing with the accident investigation and all matters that follow
these incidents (i.e. claims).
Of course, we should not forget that the shipowner loses a skilled employee and the
psychological effect that an accident can have on fellow crew members.28
27
28
Compare UK P&I Club handout, received through Mr. Macke from Pandi Services Hamburg
Compare UK P&I Club handout, received through Mr. Macke from Pandi Services Hamburg
22
6. Compensation and Repatriation
The compensation for injury or illness may vary a lot, even if two persons happen to
have the same injury it might be possible that they get different compensation.
The compensation height is dependent on different factors, like the nationality of the
seaman, the contract he signed, the place of incident, the flag of the ship and the
nationality of the shipowner. Furthermore, the applicable law and articles of agreement
have to be considered.
There are numerous possible combinations that would all lead to different
compensation heights for the same incident, therefore I will concentrate on the different
compensations and repatriation obligations according to different contracts.
I am taking a closer look at the ITF contract, the POEA contract and a contract of a
German shipping company.
6.1 The International Transport Worker’s Federation (ITF) contract29
6.1.1 Medical Attention § 16
According to §16 of the ITF contract a seafarer is entitled to immediate medical
attention for sickness or injury and is also entitled to medical attention (including
hospitalisation) if he had to leave the ship due to his sickness or injury. The company
has to pay these expenses as long as such attention is required and is liable to take on
all oncoming costs for medical care and maintenance until further medical treatment
will bring no improvement to the condition of the injured or sick person.
6.1.2 Sick pay § 17
When a Seafarer is signed off and landed at any port because of sickness or injury, the
company has to continue paying the seafarer’s wages until he has been repatriated at
the company’s expense or has arrived at his home or place of engagement, whichever
place being more convenient to the Seafarer. He is entitled to sick pay for a maximum
of 112 days. The rate shall be equivalent to his basic wages and subsistence
29
For all following paragraphs: compare ITF contract, 1998, page 6ff
23
allowance (US$ 18 per day). If a Seaman is injured the sick pay has to be paid until he
has been cured or a doctor attests that the incapacity is of permanent character.
The Seaman has to prove that he is still entitled to receive sick pay by satisfactory
medical certificates. When the Seaman leaves the ship, he shall get and advanced sick
pay for the estimated number of days certified by a doctor for which he is expected to
be sick or injured.
6.1.3 Loss of Life, Death in Service § 19
If a Seafarer dies through any cause while employed by the company, the company will
pay US$ 60,000 to the widow or children or parents and US$ 15,000 to each
dependent child up to a maximum of four under the age of twenty-one. If the Seafarer
leaves no widow, the sum will be paid to a legally entitled person or to the respective
administration of the estate of the Seafarer. The death can result from natural causes,
from travelling to or from the vessel or from marine or similar peril.30 Any payments
made have no influence on any claims for compensation made in law.
6.1.4 Disability § 21
A Seafarer who is injured as a result of an accident, from whatever cause and whose
ability to work as a Seaman is reduced as a result of this accident is entitled to get - in
addition to sick pay - a compensation according to the provisions of the Agreement.
That is, if the accident happened while being employed by the company; regardless of
fault, as well as accidents that happened while travelling to or from the vessel.
To determine the degree of disability the Seafarer shall be examined by a doctor
appointed through the ITF. The company has to provide disability compensation
according to the degree of disability as shown in the table below:
30
Since there is no restriction due to negligence of the crew member, even suicide will have to be covered
by the company.
24
DEGREE OF DISABILITY
RATE OF COMPENSATION
RATINGS
OFFICER & ratings
AB & below
above AB
%
US$
US$
50-100
60,000
80,000
49
30,000
40,000
40
24,000
32,000
30
18,000
24,000
20
12,000
16,000
10
6,000
8,000
with any differences, including less than 10% disability, to be pro rata.31
A Seafarer whose disability is 50% or more according to the compensation scale32 shall
be regarded as permanently unfit for the work at sea and be therefore entitled to 100%
compensation according to the table above. Any Seafarer who is less than 50%
disabled, but certified as permanently unfit for further service at sea in any capacity, by
a doctor appointed by the ITF shall also be entitled to 100% compensation.
If a Seafarer is in spite of this disability still able to continue working at sea, but who is
determined by the ITF’s doctor to only be able to continue in a lower category of
employment than the rank he had before the accident occurred, he is entitled to a
compensation according to the table above, enhanced by 50%.
Any of the above named payment shall have no effect on compensation claims made
in law.
31
32
Table taken from ITF contract, 1998, §21, page 8
Compare Annex 1
25
6.1.5 Repatriation § 23
Repatriation shall comply with the Seafarer’s need and reasonable requirements for
comfort.
The company is liable for all costs that arise of maintaining the Seafarer ashore, until
repatriation takes place.
The Seafarer is entitled to repatriation to the company’s expense to his home or to his
place of engagement (the Seafarer decides which place is more convenient for him),
when signing off due to sickness or injury […].
6.2 The Philippines Overseas Employment Administration (POEA)
contract33
6.2.1 Section 19 Repatriation
If the Seaman is discharged at a port other than the Philippines, due to any reason
(except for discipline), he is entitled to accommodation ashore and if he is not going to
return to the vessel, the company shall pay for repatriation to the Philippines.
Furthermore, the Seafarer is entitled to basic wages from the day of signing off until he
arrives at the point of hire.
6.2.2 Section 20 Compensation and Benefits
6.2.2.1 Compensation and Benefits for Death
If the Seaman is a victim of a work-related death during the time of his employment, the
employer shall pay the Seaman’s beneficiaries the amount of US$ 50,000 and
additional US$ 7,000 for each child under the age of twenty one, up to a maximum of
four children. The compensation shall be paid in Philippine currency.
33
For all following sections: compare POEA contract (Standard terms and conditions governing the
employment of Filipino Seafarers on –board ocean-going vessels) 2000, page 14 ff
26
If the “death is caused by warlike activity while sailing within a declared war zone or
war risk area the compensation payable shall be doubled.”34
The above named compensations will be separate from and in addition to any “benefits
which the Seafarer is entitled to under the Philippine laws from the Social Security
System, Overseas Workers Welfare Administration, Employee’s Compensation
Commission, Philippine Health Insurance Corporation and Pag-ibig35, if applicable.”36
“The employer shall pay the deceased’s beneficiary all outstanding obligations due the
seafarer under this Contract.”37 The seaman’s remains and personal effects have to be
transported to the Philippines at the employer’s expense.
Furthermore, the employer has to pay US$ 1,000 for funeral expenses to the
beneficiaries. The amount shall be paid in Philippine currency.
6.2.2.2 Compensation and Benefits for injury or illness
If a Seafarer suffers work-related injury or illness during the time of employment, he is
entitled to his wages during the time he stays on board the vessel.
The employer is liable for all costs that arise from medical and/or dental treatment in
any foreign port, if the treatment is injury or illness related. Surgical and hospital costs
have to be covered “as well as board and lodging until the Seafarer is declared fit to
work or to be repatriated.”38
If the Seaman is back in the Philippines and still requires medical attention due to his
injury or illness, the employer shall also be liable for these costs until the Seaman has
recovered from his injury/illness or until a doctor has established the degree of his
disability. The company will appoint the doctor who carries out this examination.
When leaving the vessel for medical treatment, the seaman is entitled to sick pay,
equivalent to his basic wage. Sick pay will be paid until the Seaman has recovered
34
Quote from: POEA contract, 2000, Section 20, page 17
Pag-ibig stands for” Pagtutulungan sa Kinabukasan: Ikaw, Bangko, Industria at Gobyerno“. (“The Pagibig Overseas Program aims to provide Filipino Overseas workers/immigrants opportunity to save for
their future while giving them the chance to avail of a housing loan…”, quote form http://www.pag-ibigfund.com/services&programs.htm, April 5th , 2005)
36
Quote from: POEA contract, 2000, Section 20, page 17
37
Quote from: POEA contract, 2000, Section 20, page 17
38
Quote from: POEA contract, 2000, Section 20, page 18
35
27
from the injury/illness or until the company-designated doctor has confirmed the degree
of the permanent disability. “[…] in no case shall this period exceed one hundred
twenty (120) days.”39
The Seafarer will have to see a company-designated doctor within 3 days after his
return, so that his medical condition can be diagnosed. If he fails to do so he loses his
right to claim the above mentioned benefits.
If a doctor chosen by the seafarer disagrees with the diagnosis, a third doctor, agreed
on by the seaman and the company will run another medical check on the seaman.
The decision of the third doctor will be final and binding for both parties.
After signing off from the vessel due to medical treatment, the employer shall pay all
repatriation cost, as far as the seaman is declared fit for repatriation or when he is able
to resume his work, but the employer is unable to find employment for him.
In case the illness or injury leads to a permanent total or partial disability of the seaman
he shall receive compensation according to the schedule of benefits40 listed under the
contract.
Under this contract no compensation or benefits shall be paid if the injury, incapacity,
disability or death of the seafarer is caused by the seaman’s wilful or criminal act41, as
well as intentional breach of his duties, provided that the employer can prove that the
seaman’s action is directly related to the injury, incapacity, disability or death.
Any seafarer who deliberately withholds medical conditions in the pre-employment
medical examination will have no right to receive any benefits or compensations.
“The seafarer or his successor in interest acknowledges that payment for injury, illness,
incapacity, disability or death of the seafarer under this contract shall cover all claims
arising from or in relation with or in the course of the seafarer’s employment, including
but not limited to damages arising from the contract, tort, fault or negligence under the
laws of the Philippines or any other country.”42
39
Quote from: POEA contract, 2000, Section 20, page 19
Compare Annex 2
41
Unlike in the ITF contract the POEA contract excludes compensation and benefits for suicides.
42
Quote from: POEA contract, 2000, Section 20, page 21
40
28
According to Sections 30 and 31 the claims have to be made “…within 3 years from the
date the cause of action arises, otherwise the same shall be barred”43 and “…shall be
governed by the laws of the Republic of the Philippines, international conventions,
treaties and covenants where the Philippines is a signatory.”44
6.3 The contract of a German Shipping Company (for a Nautical Officer)
The German shipping company signed an accident insurance on behalf of the seafarer,
whereas the seafarer shall receive € 103,000 for disability45 and the seafarer’s
beneficiaries would get € 52,000 for his death46.
The coverage is worldwide for the time on board, including shore leaves, as well as
during the travel from or to the vessel.
Excluded is cover for accidents that happen:
ƒ
due to a disturbed consciousness,
ƒ
when driving motor vehicles under the influence of alcohol, with a blood-alcohol
of more than 1‰
ƒ
due to the active participation in war activities
ƒ
when taking part in motor vehicle races
Furthermore, radiation damages and air accidents are excluded.
The coverage will void, if the insured suffers from a severe mental illness or will
become unfit for work during the term of this insurance.
The above-mentioned compensation for death will be paid when the seafarer dies
within two years from the consequences of an accident.
If the seafarer is totally or partially disabled due to the consequences of an accident,
within two years of its occurrence, the insurance company pays for total disability the
43
Quote from: POEA contract, 2000, Section 30, page 26
Quote from: POEA contract, 2000, Section 31, page 26
45
About US$ 133,000 (on April 1st, 2005)
46
About US$ 67,000 (on April 1st , 2005)
44
29
above named sum and for partial disability the sum that is related to the degree of
disability, which is laid down by the insurance company.47
The German Seaman Code applies to all merchant vessels under the German flag48
and regulates the rights and duties of seaman and shipowner in case of injury or
sickness.
6.3.1 The German Seaman Code49
§ 42 The shipowner’s obligation to care for sick crew members
The crew member is, while on board the ship and beyond the limits of the German law,
entitled to receive adequate medical care in case of an injury or illness. The shipowner
has the liability to take over all these costs, except when the contract was set up in any
country other than Germany, or when the crew member did not board the ship due to a
sickness or injury that occurred when the contract has already been signed.
§ 43 Circumference of care
The care for sick and injured Seaman includes medical treatment, food and lodging.
Medical treatment includes cure and medicine.
§ 44 Caring for sick and injured Seaman in a German port
If a ship is in any German port, and the seaman is still aboard, he can choose between
the medical treatment that has to be paid for by the shipowner and the medical
treatment of the health insurance company.
The shipowner is entitled to give the seaman into the care of the health insurance
company, if there is no doctor available, when the injury or illness makes it impossible
for the seaman to stay aboard or when the success of recovery is endangered by
staying aboard.
47
Compare Annex 3
Cf: Geman Seaman Code, 2002, §1 page 7
49
For all following paragraphs:compare Geman Seaman Code, 2002
48
30
§ 45 Caring for sick and injured Seaman outside the area of the constitutional law of
Germany
If the seaman has to leave the ship where German constitution does not apply, due to
any illness or injury, the shipowner will be liable to pay for medical treatment and food
in a suitable hospital. Furthermore, the seaman is entitled to appropriate daily money to
cover expenses for his personal needs.
§ 46 Standstill of entitlements
If the Seaman refuses to take the medical treatment, without any justified reason, the
entitlement for care will come to a standstill as long as the refusal lasts.
§ 47 End of caring for sick or injured Seaman on behalf of the shipowner’s costs
The shipowner’s liability to pay all costs ends when the seaman leaves the ship in any
German port. Is there a danger in interrupting the medical care, the shipowner shall
continue, until the health insurance company or the responsible accident insurance
company start their benefits.
If the seaman was left behind outside the area of the constitutional law of Germany, the
liability for medical care ends once the seaman has been repatriated, however no later
than 26 weeks after the seaman left the ship. When the seaman has been injured due
to a working-accident the liability for medical care ends when the responsible accident
insurance company starts its benefits.
§ 48 Continuous pay of wages in case of sickness
The sick or injured crew member is entitled to receive his wages at least until the day
he leaves the ship. Furthermore, the crew member shall receive his wages up to a
duration of 6 weeks, continuing from the first day of his unfitness for work. He is still
entitled to this payment if the contract will be terminated due to his sickness or injury or
if he cancels his contact with the shipowner’s approval.
§ 49 Repatriation in case of injury or illness
The shipowner is liable for all repatriation costs if the seaman is not able to return to
the vessel and continue his work due to any illness or injury.
31
§ 50 Injury or illness caused by any criminal act
If the injury or illness was caused by any criminal act, the seaman looses his right for
medical care through the shipowner.
6.4 Comparison
These three different contracts all have some things in common. Each contract makes
sure the seaman will get compensation in case of disability and the seaman’s
beneficiaries get compensation in case of death.
The great differences are that under the ITF contract the shipowner will even have to
pay for the suicide of the seaman, whereas the POEA and the German contract
exclude this possibility.
The compensation for death varies from as low as US$ 50,000 in the POEA contract
and US$ 60,000 in the ITF contract to about US$ 67,000 in the German contract.
The greatest difference in the compensation height is the compensation for each child
under 21. Under the ITF contract, each child gets US$ 15,000, whereas under the
POEA contract each child gets only half the sum. In the German contract
compensation for children under 21 are not even mentioned.
Another difference is the time that the shipowner is liable for medical expenses. Under
the German contract the shipowner is only liable until the seaman is repatriated to
Germany and the health insurance company starts its benefits, whereas under the
other contracts the shipowner is liable for medical expenses in the seaman’s home
country until the seaman has recovered from his injury or illness or until no
improvement of the condition can be reached by further medical treatment.
Furthermore, there is a difference in the time of entitlement of sick pay. Under the ITF
contract the maximum time for sick pay is 112 days, under the POEA contract it is 120
days. The sick pay will have to be paid by the company, whereas the German
Seaman’s Code guarantees a continued pay of wages for six weeks by the company
and later on the health insurance company will give sick pay to the seaman for a
maximum of 78 weeks within a 3 year duration.
Another difference is the maximum amount for disability. At total disability a seaman
will get a maximum of US$ 60,000 or US$ 80,000 under the ITF contract, depending on
his rank, US$ 60,000 under the POEA contract, independent of his rank and under the
German contract about US$ 133,000 for a ship’s officer.
32
The compensation schedules (Annex 1-3) for the contracts also have a great
difference. The ITF schedule is very detailed, such as the POEA schedule, whereas
the German compensation schedule is not as specific.
6.5 Case A: Repatriation50
To show the costs that can occur when a seaman gets ill and has to be repatriated the
author will present a case of a German seaman, who was sailing under a German
contract and on a ship under German flag.
One month prior to boarding the ship, he was examined during his pre-employment
medical exam and found healthy and fit for the service at sea according to the SeeBG
criteria.
Mr. X boarded the ship on December 16th in Japan; afterwards the ship went on anchor
in the Yellow Sea to wait for the announcement of the next port.
The first symptoms of Mr. X occurred on December 31st, he did not feel well and
informed the master. His symptoms were stomach pain, vomiting and constipation.
The master gave him medicine and observed his symptoms.
On January 1st the condition of Mr. X worsened, he got fever, which rose until January
04th. On January 5th the illness got worse, the pain increased and the stomach of Mr. X
hardened; he got stomach cramps, had blood in his stool and perspiration attacks.
Although his fever fell, the master decided to get radio-medical advice. The contacted
doctor advised to get Mr. X to the hospital as quickly as possible. In the evening of
January 5th, the master gave order to deviate to an emergency port in Japan to give the
patient ashore for further medical examination and treatment in a hospital.
On Jan. 6th the ship reached the designated port and Mr. X was brought to a hospital
where he was diagnosed to have amebas. When arriving at the hospital nearly all his
inner organs failed and he had to be operated right away. Afterwards he was taken to
the intensive care unit of the hospital and set into a coma. Another surgery followed at
the end of January. At the beginning of April he was getting better and was changed
from the intensive care unit to a normal one. Mr. X stayed in the hospital until April 16th,
when an ambulance-plane with doctor from Germany flew to Japan to pick him up and
repatriate him to Germany.
50
The case was represented by Pandi Services, Bremen and was anonymised to protect all parties
involved.
.
33
The medical treatment was continued in Germany and the patient fully recovered from
his illness.
6.5.1 The Costs51
Hospitalisation for 3 ½ months....................................................................... € 81.000
Costs for deviation of the ship
(including bunker and loss of
time), flight for the patient’s father,
continued pay of wages for
the patient, flight costs for the
substitute........................................................................................................ € 33.600
Repatriation by ambulance-plane
and accompanying doctor .............................................................................. € 55.000
Total costs...................................................................................................... € 169.600
This example shows, that a severe illness can lead to a huge amount of costs that
have to be paid for by the shipping company. Since the patient in this case was
German, the health insurance company took over once he was repatriated to Germany.
All costs that arose after being back home were taken over by his insurance company,
whereas if he would have been a different nationality, lets say, Philippine, the company
would have to continue paying all medical expenses for the seaman, even though he
had been repatriated to his home country, until he would recover or until further
medical treatment would bring no improvement to the seaman’s condition.
The seaman did not try to file any claims, but if he would have wanted to get a
compensation for his illness he would have had to prove, that his employer acted
negligent and caused his illness. An infection with amebas could have been caused by
51
The costs are approximate figures, since the original currency was German Mark (Euro calculated with
the help of www.euro-umtausch.de, April 3rd, 2005)
34
dirty drinking water or contaminated food. In this case the seaman would have had to
prove that the shipowner neglected his duty to prepare the crew with healthy water and
food and therefore acted negligent.
35
7. Negligence
Negligence is defined as “Failure to exercise the degree of care considered reasonable
under the circumstances, resulting in an unintended injury to another party.”52
Whenever a person gets injured or dies in relation to an accident there is a question of
liability and negligence. Has the necessary care been applied, was the accident
unavoidable or could someone have foreseen the act?
In personal injury claims, negligence is the most important factor. Depending on where
the claim is brought to court there might be different approaches towards the law of
negligence. The actions of the defendant, in case of maritime personal injury claims the
shipowner’s action, will be measured according to national standards. Depending on
the subjective definition of negligence the results of such claims vary a lot, depending
on the place of jurisdiction.
7.1 The US approach to negligence
The United States of America have a federal court system, which means, that each
state of the US might have a slightly different approach towards the law of negligence.
The basic components related to maritime personal injury claims are identical, though.
First, a duty to comply with a certain regulated standard that protects others from
unreasonable risks has to exist. Secondly, there has to be a breach of that duty and
sub-standard conditions. Third, a causal connection between the sub-standard
condition and the injury that resulted from this condition has to exist. At last, the
claimant has to suffer from an actual injury or damage.
Claiming in the US is very popular and might be very lucrative. Nearly all personal
injury lawyers work on a no cure, no pay basis, often inclusive of legal costs (court
fees, etc.), meaning, that they work for a certain percentage of later achieved
settlement or judgement.
In Germany and most other European countries lawyers are not allowed to work on a
“no cure no pay” basis, whereas recovery agents are allowed to do so. They usually do
not cover legal costs, but therefore take a lower percentage than American lawyers. In
Europe, recovery agents take between 10 to 20% of the settlement, in Asia about 20 to
30%. American lawyers take 30% of the settlement if they archive an out-of court
52
Quote from: http://dictionary/reference.com/search?q=negligence, 2nd April 2005
36
settlement, about 35% if the case has been filed in court, but afterwards an out-of court
settlement is reached and 40% when the whole trial had to be decided in court. Of
course, this also implies a certain risk for the lawyers. In case the claim is lost or does
not achieve a high settlement or judgement, the lawyers might not get any pay at all or
just a small pay to cover their expenses.
People are not only tempted to claim in the US because of the high awards, but also
because in the US court system the party who wins their claim is not automatically
entitled to get their attorney fees back from the losing party. That is a strong point to file
claims in the US; if the plaintiff looses his case, he does not have to pay his own lawyer
and in general is not even liable to cover the attorney costs for the winning party.53
7.2 The American Civil Court system
Under the US law, a personal injury claim can be brought in a state or federal court. It
is the claimant’s decision which one he chooses. Personal injury claims in the US fall
within the area of civil law. In a civil trial, each party has the right to ask for a jury trial
instead of a bench trial.
In a bench trial, the claim will be brought in front of one judge, without any jury present.
After the plaintiff and the defendant lay down their evidence, the judge alone decides
about the case. He may take some time of consideration, but might as well proclaim
the final judgement instantly. In bench trials the judge takes over the active part during
any trial, whereas in jury trials he has a more over viewing and leading function.
The jury has the active part in those trails, they make decisions based on the facts and
documents presented and whiteness statements heard.
The jury usually consists of 12 persons, but the number can vary, depending on the
state of where the trial is held. Those jury members have no special qualifications, they
are chosen from a list and anyone over the age of 18, who is a citizen of the US and
has no criminal record can be picked for jury-chords.
When picking the prospective members for the jury, the lawyers of both sides have the
right to reject a certain number of jury members without any specific reason.
In the beginning of each trial both parties hold an opening speech. Afterwards both
parties present their view of the case, including presenting evidence and hearing
witnesses, starting with the plaintiff and followed by the defendant. Later on the lawyers
of both parties hold their final speech.
53
cf: Gold, E: Gard Handbook on P&I Insurance, 5th edition, page 233f
37
Once the presentation of the case is finished the judge instructs the jury about the
applicable law. The jury members will then leave the courtroom for consultation and to
discuss the case amongst themselves. The consultation is secret and they do not need
to give any reason for their judgement. It is usually sufficient that there is a 2/3 majority
for the verdict, only some cases ask for a unanimous one.
In criminal trials the jury decides if the facts of the case are given and therefore find the
defendant guilty or not. The judge will afterwards decide about the sentence.
In civil trial though, the jury decides not only about the guilt of the defendant, but also
about the compensation height for the plaintiff, including compensation for personal
suffering. That means in jury trials the judge has no say in the decision about the
sentence or compensation height. Although in certain cases, the judge has the
possibility to override the jury’s decision and adjust the compensation height to a more
recent level.54
7.3 The power of the jury
Personal injury claims in the US usually lead to a higher award, compared to the award
that would have been granted under any other law. The reasons for these high awards
are the jury trials; everyday people, without any special education in law decide about
the compensation height for personal injuries. “The jury is not limited by contract or
conventions to the amount of damages that may be awarded as the United States are
is no signatory to the Athens Convention and any contract language limiting damages
in a passenger ticket or seaman’s contract is void by law.”55 In the US there is no
strongly developed social system as we have it in Germany.
In many cases where an injury or illness leads to disability and being unable to work, it
means for the victim and his family a loss of earnings and no money to pay hospital
bills or living expenses in the future. “…crew contracts in the United States do not have
scheduled disability awards and there is no worker’s compensation system in place for
American seamen.”56 The only way to get compensation for disability is to claim by way
of negligence claim. Juries often do not decide on a rational basis but feel pity for the
victim and want justice for what happened to him, they decide on the facts of sympathy.
54
Cf:http:77www.usatipps.de/Tips_1_A_E/Amercan_Way_of_Life/Amerikanisches_Recht/
amerikanisches_recht.html, April4th, 2005
Cf: http://usinfo.state.gov/journals/itdhr/0999/ijde/fine.htm, April 3rd, 2005
Cf: http://usinfo.state.gov/journals/itdhr/0999/ijde/ayscue.htm, April3rd, 2005
Cf: http://usinfo.state.gov/journals/itdhr/0999/ijde/messitte.htm, April 3rd , 2005
Cf: http://www.alumni-erlangen.de/Vortrag-Hippel.pdf, April 3rd , 2005
55
Quote from: Gold, E: Gard Handbook on P&I Insurance, 5th edition, page 234
56
Quote from: Gold, E: Gard Handbook on P&I Insurance, 5th edition, page 234
38
If there are cases of contributory negligence the guilt of the plaintiff might be
responsible for the reduction of the compensation awarded, depending on the degree
of his guilt and if his action had a causal connection to the injury.
In personal injury claims related to seafaring the defendants mostly are big companies
who – in the eyes of the jury members– have more than enough money to pay
compensation for the victim. Jury verdicts are always non-predictable and in many
cases the jury asks for a enormous compensation sum in favour of the plaintiff. Even
though the judges are able to change unreasonably high compensation sums, the risk
for the shipowner is still huge to be sentenced to pay a very high sum to the plaintiff,
that’s why many shipowner try to reach an out of court settlement and avoid being
sued. Even though these settlements sometimes cost the shipowner a great amount of
money, they usually pay less than they would when going to court. Another important
issue when filing such a claim in the US is, that the claimant usually hires a lawyer who
works on the basis of a contingent fee, therefore has to invest little. The defendant on
the other hand usually has to pay expensive lawyer fees to get a qualified attorney.
Even if he wins his case he will not be able to recover the lawyer fees from the loosing
party. Depending on the difficulty of the case the claim might last a long time until a
verdict is found. These unnecessary costs are mostly saved by agreeing to an out of
court settlement.
7.4 Damages
Compensation through damages shall put the victim in the same position as he would
have been had the injury not occurred. There are three forms of damages: special
damages, general damages and punitive damages. These damages will be awarded
single, there is not only one compensation sum, but there will be a breakdown for each
damage. The jury awards a certain amount of money for special damages, and the
same for general ones. If punitive damages are to be awarded, they are also listed
separately. That gives a certain transparency to the jury’s assessment basis and might
make verdicts a little more understandable.
In personal injury claims due to negligence, special damages and general damages
can be awarded, whereas punitive damages are usually only awarded in cases of tort.
39
“Special damages are the enumerable or quantifiable monetary costs or losses
suffered by the plaintiff, or compensation therefore.”57 Examples for special damages
are medical costs, lost wages and lost earning potential; summarised all economic
losses that occurred due to the accident.
“General damages are items of harm or loss suffered, for which only a subjective value
may be attached.”58 That means compensation for pain and suffering, emotional
distress, etc.
Punitive damages are not seen as compensation for the plaintiff but as a form of
punishment for the defendant. They shall act as a deterrent to prevent the defendant
and any other person to ever let this happen again. “Punitive damages” should not be
mixed up with the term of “fines” which will have to be paid for a wrongful doing in
criminal trials. Punitive damages shall have a satisfactory component for the plaintiff.
7.5. The German approach to negligence.
The definition of negligence requires predictability and avoidance; therefore, any
person who foresees damage and does not react, as well as any person who does not
foresee the oncoming damage, but would, if he had been more attentive, acts
negligent.
If someone is being harmed by another person due to negligence, the person who
caused the harm will be held liable for his actions.
According to § 253 of the German Civil Code the injured person is entitled to
compensation for violation of his body, health, freedom or sexual self-determination.59
The suffered damages to the person’s assets, i.e. material damages, medical treatment
costs and loss of earnings can be compensated in accordance with §§ 823ff BGB, in
combination with §§ 249ff BGB, whereas the suffering from pain, restriction in the
lifestyle or permanent disfigurement cannot be described as damage to a person’s
assets and will therefore have to be dealt with in a different way of compensation,
described under § 253 BGB.
The compensations for non-economic losses are not easily defined. It depends on the
grade of the injury, the time of suffered pain, the amount of operations that had to be
57
Quote from: http://encyclopedia.laborlawtalk.com/Damages, April 4th, 2005
Quote from: http://encyclopedia.laborlawtalk.com/Damages, April 4th , 2005
59
Cf: Hacks, Ring, Böhm: Schmerzensgeld Beträge, 23. edition, page 9
58
40
undergone as well as the grade of disability. The character and financial situation of the
defendant shall have no influence on the compensation height.
In cases of contributory negligence the accessory’s action that contributed to the injury
will be taken into calculation for the compensation height.
Damages according to German law have always two functions, compensational
functions and satisfactory functions.60
7.5.1 Compensational functions
a) When deciding about the compensation height for permanent damages the personal
surroundings of the victims have to be taken into consideration. Important aspects are
the age, gender and occupation.
b) According to German law, mental sufferings cannot be compensated (with a few
exceptions). “Mental suffering” means the affect a certain circumstance has on
someone’s psyche. This influence of the psyche cannot be measured and therefore not
compensated, whereas a proven mental disability, attested by a qualified doctor can of
course be part of compensational recoveries. These non-compensational damages
include grief, depression and listlessness. They are not directly caused by the
defendants action but are a consequence of the real injury. Only in case that this
damages manifest in an accepted sickness that can be testified by doctors the plaintiff
might be able to collect compensation.
However, grief and pain suffered due to the death of a close relative or partner is not to
be compensated.
c) The defendant is responsible for secondary mental damages of the victim.
d) The social burdens that result from an injury, including changes in a person’s social
life, his not being able to continue a certain sport or his having less chances for
marriage are factors that are relevant for compensation.
e) The age of the injured person is an important factor for the height of compensation.
However, law generally agrees, that a younger victim (with a severe permanent injury)
who will have to carry the burden of his injury for a longer period of time than an older
victim will receive a higher compensation, the compensation for older victims is rated
differently.
There are two different approaches of compensation for older victims (who also
suffered a severe permanent injury). The first is that older people get a lower
compensation because of their decreased life expectancy, the other approach states
60
Cf: Hacks, Ring, Böhm: Schmerzensgeld Beträge, 23. edition, page 9ff
41
that they should get a higher compensation, especially because their age is making
cure a lot more difficult and they cannot as easily adapt to new life situations as
younger might.
f) Compensation for death depends on two factors; first of all it is important to know if
the dead person instantly died when the accident happened. If so the bereaved have
no right for compensation because there is no proof that the dead person had to suffer
any pain. But when death did not occur instantly, but the person still lived after the
injury the pain and suffering is likely and the bereaved are entitled to compensation,
which will be granted depending on the age the person had when dying.61
7.5.2 Satisfactory function
a) The degree of guilt of the defendant is taken into consideration when setting the sum
for compensation. However, if the defendant himself also got injured or died through
the same injury, this aspect usually reduces the compensation height for the claimant.
b) Some courts award differently depending on the fact, if the injury occurred during the
person’s free time or working time, whereas most courts think it is unimportant for
finding a suitable compensation height
c) The financial status is also taken into consideration when deciding about the
compensation height. When a plaintiff is well situated the compensation might not be
very high, due to the fact that the injured is already financially secure and money would
hardly compensate for the suffered non-economical damage. This does not exclude
though, that his high living standard might in some cases also lead to a higher award.
On the other hand, the fact that a plaintiff is not at all well situated might lead to a lower
compensation on the argument that he is used to simple living conditions and as such
happy with a smaller compensation sum.62
d) Economic welfare of the defendant is up to a certain degree taken into consideration
for the compensation height. No one should be financially ruined after paying
compensation, whereas being destitute is no reason not to pay at all. If gross
61
Cf: Hacks, Ring, Böhm: Schmerzensgeld Beträge, 23. edition, page 10f
The author writes, that this view of compensation is sometimes described as unsocial. There should be
no reason to measure differently when the nature of men asks for uniformity in relation with body injury,
pain and listlessness. I have to say, I totally agree on that and am not able to follow the argumentation
above. Do poor people feel less pain and therefore need less compensation? Although compensation
means to put the plaintiff into the same situation that he would have been in if the injury/accident had not
occurred, I still have a feeling of unfairness if the same injuries are compensated differently only based on
the financial status of the plaintiff, instead of only judging according to the injuries and pains that were
suffered.
62
42
negligence on behalf of the defendant caused the accident, neither of these above
named reasons should be taken into consideration when deciding about the
compensation height.
e) If the defendant’s insurance company tries to delay the case this can lead to a
higher award.
f) Even if the injured person lost all his physical perception and will not be able to
realise or
enjoy the compensation there shall be made no difference between the sum he gets
and the sum any other injured with the same or similar injuries would get.63
7.6 Degree of guilt
In Germany the law differentiates negligence. There is negligence, gross negligence
and wilful negligence.
The definition for negligence can be described as acting without considering the
necessary care and attention.
Gross negligence means Intentional failure to perform a duty, reckless disregard of the
consequences as affecting the life or property of another.64
Wilful negligence is defined as taking the possibility of causing damage into
consideration, but not changing one’s action.
Wilful misconduct is an injury committed by a wilful act. The tortfeasor kows that his
action may cause injury or harm to others and accepts them.
The degree of guilt will have to be determined in a trial and is decisive for the
compensation height.
7.7 The German court system
The first difference to the US system is the fact that lawyers in Germany are not
allowed to work for a contingency fee65 basis. That means that the plaintiff will have to
pay his lawyer on an hourly basis and only if he wins his case he is able to recover a
63
Cf: Hacks, Ring, Böhm: Schmerzensgeld Beträge, 23. edition, page 11f
Quote from: http://www.dorseyagency.com/glossary_g.htm, April 8th, 2005
65
There is a difference between the American and the British contingency fees, which should not be
mixed up. American lawyers who work for a contingency fee will get a certain percentage of the
settlement (between 30 to 40%), whereas British lawyers have a different approach to contingency fees.
When they lose a case they will not get any payment for their work, however, should they win the trial
they will get double fees calculated on a basis for their hourly wages.
64
43
certain amount of his attorney fees from the losing party66. This is probably one reason
why personal injury claims in the US are more popular than in Germany or other
European countries.
Claims for compensation are ruled by the German civil law. Under German jurisdiction,
jury trials are unknown, only in some cases concerning criminal law lay assessors are
involved in setting awards. However, they can by no means be compared to a jury.
Claims for compensation of damages will be held in front of a judge (comparable to the
US bench trials) and only he will decide about whether or not compensation will be
granted, and if it is granted, the height of the payable compensation.
Deciding about the sum for economical losses is rather easy compared to deciding
about the height of compensation for non-economical losses. There is no law that
stipulates the sum for certain injuries, the decision is totally left to the judge alone. He
will decide by his own means and his job-experience which sum is adequate for the
injury or the death, but as he can always compare the case with similar ones and
orientate his decisions on other verdicts.
Awarding a fair and adequate sum for non-economical losses is a whole lot more
complicated. How is someone able to know what pain and suffering is worth? That is a
very subjective approach and can be hard to decide on. Nevertheless, the judge has to
find a reasonable and fair award. The German tables of compensation67 can give a
guidance by summarising more than 3,000 German court decisions These tables are
arranged by lawyers and contain a collection of court decisions in relation with
compensation claims. They contain a small summary of the circumstances that were
important for the verdict and influenced the decision, the types of injury, the duration
and circumference of the treatment, the permanent damage, the gender and age of the
injured person and the adjudged amount of compensation, as well as the court and the
date of the verdict decision. 68.
Judges are usually free to choose any compensation they find adequate, but if they
vary tremendously from similar verdicts listed in the compensation tables he will have
to give reason for this difference in his award.
Due to the possibility to orientate one’s decisions by the compensation tables the
compensation heights for personal injuries are quite resilient. Awards compared to the
ones granted by US juries will in all likelihood never be reached under German law.
In the US many awards are known to exceed well beyond a million US dollars, whereas
in Germany the highest award (according to the compensation tables) was €350,000.
66
Experience shows, that about 2/3 of the attorney fees can be recovered.
Schmerzensgeld Beträge Tabellen , 23rd edition published the ADAC
68
Three reference pages taken from Schmerzensgeld Beträge by Hacks, Ring, Böhm are attatched in
Annex 6 to show low, medium and high awards of the German court.
67
44
7.8 Damages
The German court system also knows punitive damages; although as regards the
height not comparable to awards issued by US courts for punitive damages.
Furthermore, in Germany there is no separate listing made for the different damage
types. In the award only the total sum for compensation is mentioned, not saying how
much is attributed to which damage. Therefore, it is impossible to say which amounts
are being seen as adequate for compensation and which weight are given to punitive
damages. Some judges have the opinion that the tortfeaser is already sufficiently
punished by his imprisonment and therefore should not be forced to pay additional
punitive damages. However, other judges feel that imprisonment has no influence on
the compensation award and apply punitive damages.
It would be interesting to see how the final sums are decided on in relation to how
much money was awarded for compensation and how much was for punishment.
Unfortunately, under the German law there is no division and the plaintiff will never
know how the judge estimated the defendant’s negligence. In most cases though the
decision about the compensation height is made independent of the sentence.
45
8. Applicable law
In case that a person gets injured and wants to try and get a higher compensation than
the one that he is entitled to under his contract, the first thing to determine is the laws
or conventions that apply to his case.
Nearly all crew contracts contain a statute about the place of jurisdiction in case any
claim is brought to court. Even though the place of jurisdiction is agreed on by contract
many semen try to claim in a country that might offer more opportunities to get a high
compensation. There are some countries where courts are rather strict about the
contractually agreed jurisdictions (like Germany) and will not let the plaintiff file a claim
in their country, whereas other countries (like the US) are more likely to let a foreigner
claim under their law, even though a different jurisdiction was agreed on by contract.
There is of course the German civil law, where in accordance to § 253 of the German
Civil Code, which described above, claims for compensation will be handled.
But there are also specific laws applying to seamen. It would be impossible to describe
all different laws available, and I will therefore concentrate on the following laws and
convention: The United States Merchant Marine Act 1920 (Jones Act), Death On The
High Seas Act (DOHSA), Athens Convention, Montreal Convention and Longshore and
Harbor Worker Compensation Act (LHWCA).
8.1 The Jones Act
Under the Jones act of 1920, any seaman can bring a claim against his employer for
negligence, resulting in injury or death. According to the definitions in the Jones Act, a
seaman is “an employee with an employment related connection to a vessel in
navigation (or to an identifiable group of such vessels) that is substantial in duration
and sea-based in nature; and whose duties contribute to the function of the vessel or to
accomplishment of its mission.”69 This means, that not only seaman in the traditional
definition are able to sue under the Jones Act, but also the staff of passenger ships, oil
platform workers and commercial divers may be entitled to recover their pecuniary
damages from their employer under the Jones Act. Punitive damages cannot be
recovered under the Jones Act.
69
Cf: Gold, E.: Gard handbook on P&I insurance, page 244, quote from: Mc Dermott lnt’l.Inc. v
Wilander, 498 U.S. 337, 1991 AMC 913 (1991); Chandris Inc. v. Latsis, 115 S. Ct. 2172, 2184 (1995)
46
The phrase that “any seaman” can claim under the Jones Act does therefore also
include foreign seaman. Since awards in the US are usually higher than in the
seaman’s home country, many try to claim in the US and hope to get a higher
compensation than they are entitled to according to their contract.
When deciding whether or not the Act applies to the foreign seaman, the judge has to
consider certain factors. By exploring if any of the following points justify a claim in the
US:
ƒ
“place of the wrongful act
ƒ
law of the flag of the ship
ƒ
allegiance or domicile of the injured seaman
ƒ
allegiance of the defendant shipowner
ƒ
place where the contract of employment was made
ƒ
inaccessibility of the foreign forum
ƒ
law of the foreign forum
ƒ
shipowners base of operations.”70
ƒ
The following extracts give an overview about the appliance of the Jones Act according
to the above listed factors:
“Contacts necessary to create American base of operations must be substantial;
foreign owner must be engaged in extensive business operation in this country;
important consideration for determining base of operations is location at which day-today operating activities are conducted; mere use of American husbanding agents or
brokers who contract in American ports for use of foreign ship's services is insufficient
to establish American base of operations; fact that foreign vessels have called at
United States ports do not support finding of American base of operations; mere
existence of temporary restraining order against foreign vessel and fact that vessel is
plaintiff in another lawsuit has not relevance to establishment of American base of
operations. Diaz v Humboldt (1984, CA5 La) 722 F2d 1216.”71
“Due to minimal contacts with United States, court lacked subject matter jurisdiction
over suit for injury occurring outside United States waters brought by Honduran crew
70
Quote from: http://www.nepia.com/risk/publications/newsletters/archive/41/signals41.php
March30th , 2005
71
Quote from: http://www.jonesact.com/USC688/500549.htm, April 7th, 2005
47
member of vessel registered in Cyprus by German corporation. Matute v Procoast
Navigation, Ltd. (1991, CA3 NJ) 928 F2d 627, 18 FR Serv 3d 1510.”72
“Provisions of 46 USCS Appx § 688 are applicable to foreign events, foreign ships, and
foreign seamen, only in accordance with usual doctrine and practices of maritime law;
and that process has been duly served and necessary parties are before court of
United States is not persuasive factor in determining whether application should be
given to 46 USCS Appx § 688 since jurisdiction of maritime cases in all countries is so
wide and nature of its subject matter so far-flung that there would be no justification for
determining law of controversy simply on basis that local jurisdiction of parties is
obtainable […]Lauritzen v Larsen (1953) 345 US 571, 97 L Ed 1254, 73 S Ct 921.”73
“District Court acted within its sound discretion in declining to assume jurisdiction of in
rem proceeding by Brazilian seaman against Swedish vessel for injury allegedly
resulting from negligence and unseaworthiness, especially since Swedish consul stood
ready to compensate seaman for injury. The Falco (1927, CA2 NY) 20 F2d 362, 1927
AMC 1474”74
“In wrongful death action brought under Jones Act (46 USCS Appx § 688) and general
maritime law, arising out of suffocation of decedent Greek national by carbon dioxide
fire-extinguishing system while combating engine room fire of vessel which was
Liberian owned and Panamanian registered, United States law is properly applied
where accident occurs in American port, where vessel's entire business activity after
purchase by Liberian interests has been in United States, and where decedent flies to
United States to join vessel immediately after being hired works his entire service on
vessel in United States port prior to accident. Fisher v The Agios Nicolaos V (1980,
CA5 Tex) 628 F2d 308, 68 ALR Fed 342, reh den (CA5 Tex) 636 F2d 1107 and cert
den 454 US 816, 70 L Ed 2d 84, 102 S Ct 92, reh den 454 US 1129, 71 L Ed 2d 117,
102 S Ct 982”75
“In Jones Act (46 USCS Appx § 688) personal injury action, jurisdiction under Act does
not exist where (1) accident occurs in Brazilian national waters, (2) accident occurs on
vessel under Panamanian charter, (3) plaintiff is Brazilian citizen, (4) vessel is operated
72
Quote from: http://www.1800jonesact.com/1917-jones-act/vii_b_2.asp, April 7th, 2005
Quote from: http://www.1800jonesact.com/1917-jones-act/vii_b_2.asp, April 7th, 2005
74
Quote from: http://www.1800jonesact.com/1917-jones-act/vii_b_2.asp, April 7th, 2005
75
Quote from: http://www.1800jonesact.com/1917-jones-act/vii_b_2.asp, April 7th, 2005
73
48
by Brazilian corporation, and (5) plaintiff executes employment contract in Brazil; fact
that Brazilian employer and operator of vessel is wholly owned subsidiary of American
corporation is insufficient relationship to warrant application of Jones Act jurisdiction
where no facts exist to negate corporate separateness of Brazilian employersubsidiary. Dos Santos v Reading & Bates Drilling Co. (1980, ED La) 495 F Supp
843.”76
“Allegations by estate of deceased seaman are enough to avoid summary dismissal for
lack of personal jurisdiction, where estate asserts that defendant is owner of foreign
direct owner of ship seaman was injured on and that defendant controls large shipping
operation from specific location in New York City, because estate provides sufficient
grounds to allow limited discovery on issues of whether defendant was beneficial
owner of ship and employer of defendant. Gazis v John S. Latsis, Inc. (1990, SD NY)
729 F Supp 979.”77
“Seaman's claim brought pursuant to Jones Act (46 USCS Appx § 688) is dismissed for
lack of subject matter jurisdiction, where seaman sustained injuries aboard vessel and
vessel's ownership and operation, as well as certification, residence and base of
operations of its owners are all foreign, because facts that Norwegian national plaintiff
had taken up residence in Miami and signed on as First Assistant Engineer for vessel
there are insufficient to supply Jones Act jurisdiction, particularly since employment
contract, expressly made subject to Norwegian law, required that seaman's dispute
with vessel owner be referred to Norwegian Foreign Service Station and "not be
brought before foreign authorities." Tarasenko v Cardigan Shipping Co. (1987, SD NY)
671 F Supp 997.”78
In order to receive damages, the seaman has to prove only a minimum amount of
negligence by the shipowner or co-workers. Slight negligence can be proven by
showing that the employer did not provide adequate safety equipment for all crew
members, or did not ask the crew to use the safety gear for certain jobs.
The ship owner has to make sure he provides a seaworthy vessel and safe working
conditions for the employee. If a seaman’s injury was caused by an unseaworthy
condition he is also entitled to recover damages under the Jones Act.
76
Quote from: http://www.1800jonesact.com/1917-jones-act/vii_b_2.asp, April 7th, 2005
Quote from: http://www.1800jonesact.com/1917-jones-act/vii_b_2.asp, April 7th, 2005
78
Quote from: http://www.1800jonesact.com/1917-jones-act/vii_b_2.asp, April 7th, 2005
77
49
“The following are examples from reported cases of conditions giving rise to liability for
unseaworthiness:
ƒ
The presence of unfit or violent crew members.
ƒ
Failure to train, instruct and supervise the crew members.
ƒ
Defective hull, equipment, tools or appurtenances.
ƒ
Failure to warn of danger.
ƒ
Unsafe work methods.
ƒ
Inadequate protective clothing.
ƒ
Foreign substances on deck, stairs or ladders.
ƒ
Failure of ship’s equipment under normal use.
ƒ
Obstructions and tripping hazards on deck.
ƒ
Insufficient provisions or supplies.
ƒ
Inadequate safety equipment.
ƒ
Negligent orders.”79
If a claim under the Jones act is brought to court, the plaintiff is entitled to maintenance
and cure, as well as unearned wages. Even if there is a case of contributory negligence
the seaman is entitled to a reasonable amount of money to cover any expenses that
arise for food and lodging ashore (maintenance) and to recover any costs for medical
treatment (cure). Maintenance and cure start when leaving the ship for medical
treatment and end when the seaman recovered or no improvement of his medical
condition can be expected.
Unearned wages have to be paid by the employer for the time the seaman would have
stayed on board, whereas lost wages will be compensated by damages.
Damages will usually be measured according to the degree of negligence. A shipowner has a duty to care for his employers and make sure they work in a safe
environment. If he acts negligent he can be held liable for any injury that occurred. On
the other hand it is expected that the seaman himself acts with the necessary care and
might be able to foresee some risky situations according to his experience. If his injury
was partly caused by his own negligence the damages will still be recoverable, but the
contributory negligence will diminish the compensation height.80
79
Cf: Gold, E.: Gard handbook on P&I insurance, page 247f, quote from: Davis, CM, Maritime Law
Deskbook. Burlington: Compass Publishing, 2001, pp. 130-134
80
Cf: http.//www.1800jonesact.com/1917-jones-act/default.asp, December 2nd, 2004,
http://www.jonesact.com/jons_act_legal_remedies.htm, April 3rd, 2005
http://www.expertlaw.com/library/workers_comp/jones_act.html, February21st, 2005
50
8.1.2 Wrongful death
If the seaman dies due to an injury caused by the ship’s operator’s negligence, his
close family members (widow, children, parents, brothers or sister) may file a wrongful
death claim under the Jones Act.
Assuming that an injured person files a claim against his employee under the Jones
Act, whereas after having filed the lawsuit he dies due to his severe injuries before the
claim was heard. In principle the relatives are having two possibilities, depending on
the different laws of each state. The first option always given; a survival statute allows
that a surviving beneficiary steps in and continues the claim in the name of the victim.
The second possibility is that the trial will be continued under the survival statute, but
additionally the close relatives of the victim might be able to start a separate wrongful
death claim. This option might not always apply and depends on the state’s laws.
“The following damages may be recovered in a wrongful death action:
(1) Immediate expenses associated with the death (medical & funeral);
(2) Loss of victim’s anticipated earnings in the future until time of retirement or death;
(3) Loss of benefits caused by the victim’s death (pension, medical coverage, etc.);
(4) Loss off inheritance caused by the untimely death;
(5) Pain and suffering, or mental anguish to the survivors;
(6) Loss of care, protection, companionship to the survivors;
(7) General damages; and
(8) Punitive damages.”81
Although mentioned further that punitive damages cannot be recovered under the
Jones Act, some people state that “… while the decisions are not uniform upon the
issue of whether or not punitive damages may be recovered [...] the generally accepted
view would now appear to be that such damages are recoverable in a proper case.”82
The opinion on the recovery of punitive damages under the Jones Act obviously varies
a lot.
81
quote from: http://law.freeadvice.com/general_practice/legal_remedies/wrongful_death_recovery.htm,
27th January 2005
82
quote from: www.1800jonesact.com/offshore-injury.html, 5th April 2005
51
8.2 DOHSA – Death on the High Seas Act
The Death on the High Sea Act is a federal law that applies when a person dies on the
high sea, which is defined as 3nm off the shore. The Act applies to any person,
including crew members and passengers.
The death of an individual caused by a wrongful act on the high seas can lead to a
claim for compensation under the DOHSA. The beneficiaries of the person who died
may file a claim in the district courts of the US, where there is no right to a jury trial.
The claim can be brought to court by the decedent’s spouse, parents, children or other
dependant relatives.
If the plaintiff is still alive and files a claim under the DOHSA, but dies before being
heard, any close relative may step in and proceed the claim for him.
Under the DOHSA (as well as under the Jones Act) only pecuniary damages are
recoverable. The Act allows recovery for nurture to children, funeral expenses, loss of
service, support and contribution. Related to deaths on vessels there is no recovery for
mental anguish, pre-death pain and suffering and loss of love and affection. Punitive
damages cannot be recovered either.
The compensation height shall be adequate and if there is a case of contributory
negligence the entitlement for compensation does not deteriorate but the damages that
have to be paid by the defendant will be reduced according to the degree of
contributory negligence.
The DOHSA does not only apply to death on vessels, but also includes death on
airplanes. If an airplane crashes in international waters, and not in territorial waters the
DOHSA applies to that plane crash. In April 2000 two amendments came into force
regarding the DOHSA. The first amendment “[…] allowed recovery for the losses of
consortium, care and companionship in all cases of “commercial aviation accidents.””83
The new amendment was developed following
the TWA flight that “crashed just
beyond a marine league of New York on take off“84 on July 17, 1996 and killed many
children. The parents could only claim little pecuniary damages, but since this accident
was in the focus of the media and the public the new law was passed. The second
Amendment prescribed that DOHSA does not apply to accidents that occur within a
12miles range off the US shoreline. In summary punitive damages, as well as
conscious pain and suffering are now recoverable (in airline cases) and not restricted
83
84
Quote from: http://www.jonesact.com/dohsa/Default.htm, 3rd April 2005
Quote from www.jonesact.com/dohsa/Default.htm, April 3rd, 2005
52
by DOHSA. Furthermore the amendments say, that beyond the 12miles range DOHSA
does applies to aviation accidents and non-pecuniary damages are now recoverable.85
8.3 Athens Convention 1974
The Athens convention relating to the carriage of passengers and their luggage by sea
provides an internationally agreed compensation scheme for all states that signed86 the
convention, for injury and death of passengers as well as loss or damage to their
personal effects.
The Athens convention was designed to combine two older conventions dealing with
passengers and luggage.
The 1976 Protocol entered into force on April 30th, 1989. Before entering into force the
Protocols have to be signed by at least 10 states.
The Athens Convention applies to passengers only. A passenger by definition is: “[…]
any person carried on a ship,
a) under a contract of carriage, or
b) who, with the consent of the carrier, is accompanying a vehicle or live animals which
are covered by a contract for the carriage of goods not governed by this Convention.”87
Furthermore, the Convention applies to any international carriage where:
a) a ship is flying the flag or is registered in a State that signed the convention.
b) the contract of carriage has been made in a signatory state
c) the place of departure or destination is in a signatory state88
Under the Athens convention carriage does not only mean the carriage on board the
ship, but includes the transport to and from the ship from ashore. However, casualties
occurring during shore leave or in port facilities are not subject to coverage.
Compensation is also provided for loss or damages to the passenger’s personal
effects.
85
Qf: http://www.jonesact.com/dohsa/Default.htm April 3rd, 2005
Compare Annex 4 for a list of signatories
87
Quote from: The Athens Convention, Article 1(4)
88
Cf: The Athens Convention, Article 2 (1)
86
53
According to Article 3 of the Convention the carrier is liable for the death and injury of a
passenger, if this was caused by his negligence. The same applies to loss of and
damage to the passenger’s personal effects.
The carrier is liable for all acts of negligence of his employers that occur during their
time of employment.
If any injury or death of a passenger (and loss of or damage to his personal effects)
occur during or in connection with shipwreck, collision, stranding, explosion, fire or
defect on the ship negligence is presumed and it is upon the carrier to establish proof
to the contrary. In all other cases the passenger will have to bring the proof of
negligence. If the passenger has partly caused the injury, death or loss of/damage to
personal effect by his own negligence, the carrier can reduce his liability.
Since loss of or damage to personal effect are not relevant for personal injuries, this
part of the Athens Convention will be neglected from now on.
The Athens Convention gives the carrier a possibility to limit his liability. According to
the 1976 Protocol all liability limits are expressed in Special Drawing Rights (SDR)89.
The liability limit for death or personal injury is SDR 46,66690 per passenger. Each state
is allowed to increase (but not decrease) the limit in respect of their national carriers.
This limits will apply unless the passenger can prove that the injury or death was
caused by negligence of the carrier.
The Protocol of 1990 was adopted in May that year and an increase for the liability limit
was agreed on. In the 1990 Protocol the limit for each passenger to SDR 175,00091.
However, so far there are only four signatories for the Protocol. It will not be ratified
until at least 10 states signed. Ninety days after being accepted by 10 states the
Protocol will enter into force.
The 2002 Protocol has increased the liability even further to a sum of SDR 250,00092
per passenger. The Protocol has not been signed by any state yet and will only enter
into force one year after the 10th state signed.93
Any injury or death has to be brought to the knowledge of the carrier within two days
after the injury occurred or, if the passenger died, within two days after he would have
89
The value of SDR 1= US$ 1,34 on April 6th, 2005
SDR is defined as a basket of currencies, today consisting of the euro, Japanese yen, pound sterling, and
U.S. dollar. The U.S. dollar-value of the SDR is posted daily on the IMF’s website :
http://www.imf.org/external/np/fin/rates/rms_sdrv.cfm, April 6th, 2005
90
Approximately US$ 62,533 as of April 6th, 2005
91
Approximately US$ 234,500 as of April 6th, 2005
92
Approximately US$ 335,000 as of April 6th, 2005
93
Cf: http://www.imo.org/Conventions/mainframe.asp?topic_id=256&doc_id=663, April 3rd , 2005
54
disembarked from the vessel. In no case shall an action be brought to court after the
period of three years expired, counted from the day the injury or death occurred or the
date the disembarkation took place, whatever is later.
According to Article 17 Claims can be brought to court in any convention state. The
claimant can choose between the state in which the carrier has his place of business,
the place of departure of destination, the passengers own state and the place where
the contract of carriage was made, provided that in the last two options, the carrier has
a place of business in that state and is subject to the jurisdiction of that state.
“The United States are not a signatory to the Athens convention. US law does not
generally allow limitation of liability by contract for claims of negligence causing
personal injury or death of passengers. Nevertheless, US courts have held Athens
Convention limitations enforceable where:
ƒ
The passage contract incorporates the convention by reference.
ƒ
The passenger neither embarks nor disembarks at any US port.
ƒ
The subject voyage does not touch a US port.
ƒ
The ship’s flag state or state of embarkation or disembarkation are signatories
to the convention.”94
8.4 The Montreal Convention
Most seafarer get to or from their ship by airplane. Of course the trip to and from the
ship is included by the coverage through the ship-owner, but that does not mean a
person has not the right to hold the airline liable under his passenger ticket.
Other means of transportation to or from the ship are thinkable too, but since most
seaman fly to the port of embarkation the author chose the Montreal Convention as a
representative example. Of course, bus transportation services, taxi services and
national train companies have comparable rules for compensation and can be held
liable.
The Montreal Convention (the Convention for the Unification of Certain Rules for
International Carriage by Air) entered into force in November 2003 and replaces the
older Warsaw Convention of 1929, including all sub-sequent protocols. “The new
Montreal Convention will supersede the Warsaw System, in every State which
implements it. Where air travel takes place between Ireland and another State which
94
Quote from Gold, E. Gard handbook on P&I Insurance, 5th editon, page 273f
55
has not yet ratified the Montreal Convention, the Bill provides that the most recent
Convention common to both Ireland and that other State will apply.”95
The Montreal convention is an international agreement between the signatory96 states
to establish liability for international air transport, even though many aspects of the
Warsaw Convention were kept the liability for death and injury of passengers in an
accident were modernised.
“The Montreal convention applies to all international carriage of persons, baggage or
cargo by aircraft for reward.”97
The expression “international carriage” is defined as carriage between two different
states that are signatories of the convention, or carriage within the territory of one
single state party if there is an agreed stop in a place of any other state (which does
not have to be a signatory state).
Carriage performed by several carriers is deemed and the states agreed that it should
be regarded as one undivided carriage, independent of the fact, if the contract had
been under the form of a single or of a series of contracts.
The author will –similar to the Athens Convention – concentrate on the relevant facts
and articles for injury and death and will neglect the parts about shipping of cargo.
A document in respect of the carriage of passengers shall contain an indication of the
departure and destination places, as well as indications about stopping places.
In addition every passenger shall get a written notice which states, that there is, under
the Montreal Convention a liability limit in respect of death, injury, destruction and loss
of baggage, as well as for delayed baggage.
Article 17 of the Convention contains the rules for death and injury of passengers. It
says that the carrier is only liable for injury or death that occurs when the accident that
caused the death or injury took place on board of the airplane or is caused during the
operations connected with embarking of disembarking.
Also the carrier is only liable for damage, destroyed or lost baggage when on board the
airplane and during any period after the baggage was checked in and in charge of the
carrier. The carrier is liable for the acts of his servants and agents, if the luggage is
95
Quote from:
http://216.239.59.104/search?q=cache:QaAofvbnURQJ:www.irlgov.ie/bills28/bills/2004/1104/b1104s.pd
f+SIGNATORIES+MONTREAL+CONVENTION+SUPERSEDE++AUTOMATICALLY+WARSAW
&hl=de
April 7th, 2005
96
Compare Annex 5 for list of signatories
97
Montreal Convention, Article 1(1)
56
damaged or destroyed by their fault. However, he is not liable for any damage that
occurs due for damages as a result from a defect or low quality of the baggage.
In case that the carrier can prove, that the damage, injury or death was in part or
completely caused by the negligence of the claiming person he will be able to reduce
his liability or might even be able to deny liability in full, depending on the degree of
negligence by the claimant and the influence it had on causing the accident.
For injuries and death of any passenger the carrier could be held liable, irrespective of
any negligence on his part up to a maximum sum of SDR 100,00098 per passenger.
He is not liable for any injury or death claim exceeding the above mentioned SDR
100,000, if he can prove that the damages did not occur due to negligence or wrongful
actions of himself or his employees. Furthermore he is not liable for any damage
exceeding the SDR 100,000 if the can prove, that the accident was caused solely by
the negligence or fault of a third party.
The liability for damage caused by delay is limited by the carrier to an amount of SDR
4,15099 per passenger.
The compensation for damage to luggage is usually limited to SDR 1,000100 per
person, that is, if the passenger had not made a special declaration of interest when
giving the luggage into the care of the carrier.
In case of an aircraft accident, the carrier might in accordance with its national law be
ordered to make advance payments to injured persons or persons that are entitled to
claim compensation for a deceased one in order to meet their immediate economic
needs. This payments are not to be conducted as admission of the carrier’s liability.
If an injured person or a close family member claims in respect of a dead relative, they
can only claim for compensatory damages. Punitive damages, exemplar and any other
non-compensatory damages are not recoverable.
If the owner of the airline dies, the action for damage lies against those representing
his or her estate, in accordance with the term of the Convention.
If the airline is to be sued, the plaintiff can decide about the place of jurisdiction. The
trial can be held at the place where he the defendant has his domicile or his place of
business, or where has his place of business through which the contract was made.
Any of these places must lie within the territory of one of the signatory states.
Another possibility is to bring the claim to court in a state (which belongs to the
Convention) in which the passenger has or had his permanent residence and to or from
which the carrier operates service.
98
Approximately US$ 134,000 as of April 6th, 2005
Approximately US$ 5,561 as of April 6th, 2005
100
Approximately US$ 1,340 as of April 6th, 2005
99
57
The right to damages shall extinguish if no action on behalf of claiming party is brought
to court within a two year period, starting with the date of arrival at destination, or from
the date the airplane should have arrived.101
8.5 Personal claims by other persons
Not only seamen or passengers might get injured or file a claim, there is always a
possibility of injuries to third parties, where the ship-owner might be held liable to pay
compensation.
There are a few groups of people who might have accidents when being aboard. The
fist group are third parties carried on board for a certain amount of time, such as
relatives of a crew member who join him or her for the duration of a voyage or pilots
and supercargoes.
Furthermore there are individuals who come aboard when the ship is in port. That
includes customs, immigration, agents, ship suppliers, visitors and of course
stevedores who come aboard the ship to work.
All these persons who get insured or die on board, given that the injury or death is
directly related to the ship and caused by negligence, have a right to compensation102.
As seen before, when talking about the Jones Act, the US are a popular place to claim.
Not only seamen try to get a high compensation, also stevedores try to get
compensation for any injury they suffered when on board. The author will concentrate
on US stevedore worker and the Longshore and Harbor Worker’s Compensation Act
since many claims against shipowners are filed by stevedores.
Case B: Eye injury103
A stevedore in the US was not only working on board of ships, handling the cargo, but
additionally worked on a scrap-yard. When he was aboard Vessel M he passed an AB
doing metal work on some part of the ship. The AB was working with an angle grinder
when the stevedore, Mr. Y passed him.
At a later date he informed the master of the vessel M, that when walking past the AB
working with the grinder a chip of metal flew into his eye, he hadn’t realized right away.
101
Cf: The Montreal Convention, 2003
Compare 2.3 P&I Coverage
103
Reported by P&I Club who does not want to be disclosed. The case was anonymised to protect all
parties involved.
102
58
He had to go to a doctor who retreated the chip from Mr. Y’ s eye. After the surgery Mr:
Y lost nearly all sight on his left eye.
The master was not sure whether or not the chip of metal was actually from the works
the AB made at the time Mr. Y passed him, or if Mr. Y got that chip into his eye when
working on the scrap-yard. The local P&I agents thought of having the chip analysed,
but the doctor had already thrown it away.
Mr. Y went to a lawyer and wanted to claim for damages under the Jones Act. Even
though the P&I agents were not quite sure if he was really injured on board instead of
the scrap-yard and even though the court rejected a claim under the Jones Act, Mr. Y
still consulted with his lawyer and tried to file a claim somehow. The P&I
representatives decided to offer an out-of court settlement to avoid unnecessary costs
for lawyers and eliminate the risk that Mr. Y will find another court who will accept his
claim and get a unreasonably high award. Mr. Y agreed to the settlement and received
a generous sum compared to the injury he suffered.
8.6 The Longshore and Harbor Worker’s Compensation Act (LHWCA)
Maybe Mr. Y would have had more luck if he had tried to file a claim under the
Longshore and Harbor Worker’s Compensation Act…
The LHWCA provides for medical compensation and care for employees who are
injured or die from acts that “[…] occur on the navigable waters of the US, or in
adjoining areas used in loading, unloading, repairing or building a vessel.”104 Even
occupational diseases are covered.
The act covers all different types of worker, including longshore workers, any harbour
workers, ship builders and shipbreakers. Excluded are amongst others, office worker
and master and crew members of any vessel.
Employees under the LHWCA have a right to compensation for injury and death that
occurred under their contract when working aboard a ship or in connection with a ship.
The shipowner on the other hand has, according to the US Supreme court a duty of
reasonable care105.
The shipowner has the duty to warn the stevedore of any hazards on the ship before
the stevedore commences his work. In addition he will have to exercise ordinary care
104
105
Quote from: http://www.dol.gov/asp/programms/guide/longshor.htm, April 6th, 2005
Cf: http://www.admiralitylawguide.com/supct/Scinidia.htm, March 29th, 2005
59
by checking the equipment the stevedore will have to work with to secure safe working
conditions for him.
When the stevedore starts working the shipowner’s duty to care is continuing. He is
supposed to not endanger the stevedore by actively involving the crew to cargohandling and shall not expose the him to any kind of hazards, that means i.e. taking
bunker during loading or discharging should be avoided.
If dangerous conditions occur within the work-space of the stevedore, the shipowner
has the duty to interrupt the stevedore’s work to prevent him from getting injured and
inform him about the situation.
The shipowner can only intervene if he has knowledge about the defect and
furthermore knows that the defect working gear is used by the stevedore and poses a
risk to the stevedore.
Damages that can be recovered by the LHWCA include: all medical costs (past and
future), loss of earnings, pain and suffering, mental distress, loss of enjoyment of life
and loss of companionship.
Punitive damages can be recovered, if gross negligence of the shipowner can be
proven by the plaintiff.
“The stevedoring firm provides LHWCA compensation to its employees in return for
statutory immunity from civil suit be either the injured employee or the shipwoner. In
paying of compensation due under the LHWCA, the stevedore acquires a lien over any
recovery by the employee in a third part action against the shipowner, which is not
reduced by any contributory negligence of the stevedoring company. The shiponwer is,
therefore, not only fully responsible for third-party claims, but also faces potential
claims not only from thee individual longshoreman but also his employer.”106
106
Quote from: Gold, E: Handbook on P&I Insurance, page 299
60
9. Claiming in the US
As seen above, claiming in the United States of America might be very lucrative, even
for foreigners if the claims are accepted by the courts.
To file a claim in the US the one or more of the following conditions must be met:
ƒ
the company which is to be sued has an operational base within the USA
ƒ
the incident happened in the USA
ƒ
the plaintiff is American or has a residence in the USA
ƒ
the place of contract is the USA
Due to the fact that many big shipping-companies have at least one subsidiary
company in the US, or ships frequently call at American ports, it might be difficult to
avoid being sued in the US when dealing with a personal injury claim.
One important aspect is to have the place of jurisdiction written in the contract. The fact
that the seaman is entitled to file a claim in the contractual prescribed place can be a
good argument to convince the judge to deny a claim in the US when comparable
chances for the plaintiff are given in his home country or the place agreed under his
contract.
When a claim is brought to court in the US, the shipowner should always remember
that the most important part to do now is to defend all arguments given by the plaintiff.
If the shipowner will lay down all facts and give enough evidence that the plaintiff will
have the same opportunity to claim in the contractually agreed place and jurisdiction
the judge might comply and reject a claim under American law.
61
10. Examples for personal injury cases and claims
Personal injuries do not necessarily lead to a claim. There are numerous cases where
a seaman was severely injured or died but did not file any claim. The following
examples show that claims can be avoided when giving the seaman the necessary
support to deal with his accident.
10.1 Case C: A broken line107
MV Z was securely tied and moored in port when the port authorities gave order to
bring out some extra lines, due to a severe storm-waring. The chief mate was on the
forecastle to have an eye on the crew members who brought out the extra lines. One of
the lines given ashore broke when coming tight. The chief mate and the boatswain
were hit by that line. Both had to be hospitalised to ensure immediate medical
treatment. The boatswain had severe fractures of his lower arm. One of the chief
mate’s legs was crushed below the knee and had to be amputated.
The accident happened in Lithuania and the medical equipment of the hospital was not
sufficient to continue the medical treatment for both patients. The ship-owner then
decided to bring both patients to a hospital in Germany and not in Croatia (even though
their nationality was Croatian) to ensure the best medical treatment. An ambulance
plane was chartered and the injured were transported to Germany. The ship-owner
provided an artificial limb for the chief mate and ensured that he would be able to stay
in Germany until the recuperation was complete and he fully adjusted to walking with
his new leg. When the chief mate and the boatswain were fully cured, they were
repatriated.
Neither of them filed a claim against the shipowner.
10.2 Case D: Accidental Death108
MV A was discharging with split in a German port. The discharging was done by
stevedores alone, no crew member was involved. The crane discharged the split with a
107
The case was represented by Pandi Services, Bremen and was anonymised to protect all parties
involved.
108
The case was represented by Pandi Services, Bremen and was anonymised to protect all parties
involved.
62
grab and a bobcat was inside the hold to make discharging easier for the crane driver.
The bobcat driver sometimes signalled the crane driver since the crane driver was not
able to see all corners of the hold. Behind the bobcat the AB Mr. S was sweeping the
tank deck to clean up the spaces that were already free of split.
There was no person in the hold to direct the crane driver, just the bobcat driver who
occasionally gave signs.
The bobcat driver was pushing the remaining split toward the pile when he looked at
the grab of the crane and saw an obstacle inside the grab, he instantly signalled the
crane driver to stop and to open the grab. The bobcat driver then realised it was the
body of the AB Mr. S who was supposed to stay behind the bobcat and sweep the tank
deck. The chief mate who just happened to be there since he wanted to check the
status of discharge, called the ambulance immediately. Medical equipment was
lowered to the hold while the bobcat driver tried to free the body from split. First aid
was carried out until the ambulance arrived and took over. The ambulance could do
nothing for Mr. S, he was already dead.
No one saw the accident or knows, why Mr. S did not stay behind the bobcat in the
safe area of the hold. The crane was in operation all the time and Mr. S had
instructions to stay behind the bobcat.
Mr. S acted negligent because he left the safe area he was instructed to stay in, but
maybe there could have been negligence on behalf of the stevedores as well since no
crane instructor was placed inside the hold to supervise the discharging.
No claim was filed against the ship-owner or the stevedoring company by the surviving
dependents.
The Kim Andersen case and the Gonzalo Sosa case are two cases where enormous
sums have been awarded. Of course these awards are the exception but they may
occur.
10.3 The Andersen Case
”The family of a Danish seaman who was killed aboard a SeaEscape cruise ship was
awarded $6.1 million in damages […] by a jury in Jacksonville.
Kim Andersen, 23, was one of four men killed in November 1986 after they were
overcome by poisonous gas in a sewage-processing tank aboard the Scandinavian
Sky. The liner, which is operated by Miami-based SeaEscape Ltd., was in dry dock in
Jacksonville at the time of the accident.
63
Morris Gilbert and Angel Bati, both Hondurans, and William Ta-jan, a Filipino, also died
when they, along with Andersen, tried to fix a valve and deadly hydrogen sulfide gas
was released. […]
The Andersen family filed their wrongful death suit against Nassau-based Sky Cruises
Ltd., the ship's owner, in Dade Circuit Court. But the case was transferred with two
others to Duval County, where the men died. The other two suits were settled out of
court.
Jacksonville lawyers James Mosley and Thomas Sullivan argued that the accident was
unavoidable. They called in an expert who testified that the tank conformed with
government regulations. They asked the jury not to award any more than $50,000. But
Rivkind cited a Coast Guard report that the tank was not certified by U.S. authorities.
He accused the ship's operators of using the processing tank as a holding tank, which
allowed the buildup of gases.
Andersen's parents, Lief and Everlin, and his twin sister, Mette, attended the trial.
Rivkind said they wanted to give most of the money to a seaman's charity. Of the
award, $6 million was for punitive damages. The remaining $100,000 was for
Andersen's pain and suffering before he died.
A medical examiner testified that Andersen lived for 10-15 seconds after being
exposed to the hydrogen sulfide, which is more potent than cyanide.
Duval Circuit Judge Mattox Hair ruled that the family could not recover any money for
pain and anguish over the loss of Kim.”109
10.4 The Sosa Case
”Federal Judge Woodrow Seals signed an award for $25,843, 903.77 in favor of
Gonzalo Sosa, a Mexican national, against Tracey Navigation Company Ltd. And the
M/V Lago Izabal. My research revealed that this was the largest award ever entered for
injuries suffered by a single person, where punitive damages were no awarded. The
entire amount was compensatory in nature, designed to repay Gonzalo Sosa for his
injuries and losses in the past and in the future. Judge Seals broke the award down in
the following manner:
109
Quote from: www.lipcon.com/news_article5.shtml, January 27th 2005
64
a) Past lost earnings
$19,723.00
b) Future lost earnings capacity
$2,157,376.00
c) Past unpaid medical expenses
$42,547.00
d) Future medical expenses
$10,979,394.51
e) Pain and suffering, bodily injury, disability, mental anguish, $10,000,000.00
disfigurement, loss of capacity for the enjoyment of life in the past
and the future
f) Prejudgment interest
$2,644,863.26
At the time of his accident, Gonzalo Sosa was a 24 year old seaman working onboard
the motor vessel Lago Izabal. As the vessel was docking in Port Houston, the engine
exploded spewing burning diesel fuel on him. An emergency helicopter ride and almost
7 months of hospitalization miraculously saved his life. Over 80% of Sosa's body was
burned consisting of approximately half second degree burns and half third degree
burns. His hands are frozen into claw positions so that they are useless. He will need
24 hour a day care for the rest of his life and is totally and permanently disabled due to
his injuries both from a physical as well as a mental point of view.
It took approximately three weeks to present the testimony and evidence in his case.
On behalf of Sosa, experts in the area of orthopedics, plastic surgery, psychiatry,
nursing, rehabilitation, psychology and economics testified.
To facilitate the presentation of this complex information, complex charts showing the
human body and an actual model of the human hand were used. These techniques
allowed the experts to demonstrate their testimony in a graphic manner. Perhaps the
most compelling evidence of all was a film made of a typical day in the life of Gonzalo
Sosa. In approximately 30 minutes this film demonstrated the absolute helplessness of
this man who cannot do the simplest tasks, such as brush his teeth, button his shirt, eat
by himself or hold his 3 year old daughter in his arms.
Tragically, Gonzalo Sosa, with only a sixth grade education is an intelligent man, totally
aware that he is imprisoned for life in a virtually useless and deformed body. Persons
who see him for the first time turn away. His entry into a noisy restaurant is met in a
matter of moments with stunned silence. As result, Sosa has become a recluse,
65
existing without living. His every moment is filled with the torment of the constant pain,
the discomfort of itching and the rejection of those around him.
Perhaps the most interesting aspect of the case occurred when the Defendant, Tracey
Navigation Company Ltd., took the position that the losses of Gonzalo Sosa should be
calculated based on Mexican standards rather than U.S. standards. In support of this
position, the Defendant utilized several old cases as precedent, and argued that Sosa's
losses should be determined based on his former employment as a machinist in a
Mexican tortilla factory, rather than as a seaman. This defense was taken to an absurd
extreme when the Defendant introduced pictured of Plaintiff's home town and place of
employment to prove that he came for a very poor background.
Not only did the judge reject this defense, but in doing so, entered the largest award in
history. The court based its decision in part on the fact that (1) the Grand Cayman
company that owned the vessel was itself owned by U.S. citizens and residents; (2) the
vessel was operated out of Houston, Texas, which was its base of operations and (3)
the vessel was used to carry cargo from the United States to Mexico. […]”110
The author was not able to find comparable cases in the German compensation tables,
but the highest compensation sum listed in this table was € 360,000111, which is not at
all comparable to the US awards.
As can be seen above, claims in front of a jury in the United States may lead to awards
that in the likelihood will never be reached in Germany.
110
Quote from: www.lipcon.com/news_article24.shtml, January 27th 2005
Equivalent to US$ 465300, calculated with: http://www.gcitrading.com/german/converter.htm on
April7th,2005
111
66
11. Conclusion
Illness and injuries will always be a part of a person’s life. There is no way to predict
the date or time a person will become sick or has an accident. Therefore, it is
reassuring to know that even on board medical treatment will be granted and in case
someone has to be landed and needs medical treatment ashore, costs will be covered.
Even though, all necessary precautions are taken to make the ship as safe as possible
accidents can never be fully avoided, a slight incaution may lead to severe injuries.
Secondary damages are not always foreseeable right away and can cause permanent
disability. Compensation for disability is fixed in crew contracts but if the ship-owner
acted negligent and caused the accident in part or fully the injured party has different
options to try and bring a file against the ship-owner.
In the US, filing a claim can lead to an enormous award that will probably never be
reached in any other country. The system of getting compensation for an injury that
was caused by another person’s negligence is only fair, but it should not be forgotten,
that the aim of compensation is to put the aggrieved party into the same position as if
the injury had not occurred.
The author, is fully aware of the fact, that an accident as happened in the Sosa Case
described above will change a person’s life forever, but also doubts that money will be
able to bring back everything that is lost by this accident. It is understandable, that in
the American jury trials high awards are reached because of the insufficient social
system.
Comparing American and German compensation sums, it seems like two extremes are
being compared, the US with extremely high awards and Germany with extremely low
awards. But maybe this high awards known from the US plays tricks on our sense of
relation. We think of German awards as being unfair and compensations for pain and
suffering not sufficient to acknowledge the undergone pain and mental distress.
However, it might just be the other way around. Maybe the compensation granted in
German award is sufficient and the US awards totally exaggerated.
The author is fully aware of the fact that some aspects of compensation, inter alia loss
of love, loss of companionship and loss of society are not being compensated in
Germany, although they play a big role in the life of the injured person and his close
family and friends. It is difficult to compensate mental suffering, because it cannot be
67
seen. However, just because there might be no physical proof, mental suffering is a
fact.
This factor should be taken into consideration when deciding about compensation
heights in Germany. Maybe the law will realise that in the near future.
Accidents can be avoided best if the cause of the accident is determined and the
dangers eliminated.
Searching the web for adequate information about personal injuries, only a few
statistics could be determined. There are some national reports by seafaring nations
such as Germany, the United Kingdom and Australia that cover inter alia personal
injuries, illness and claims that occur from those injuries/illnesses. The author of this
final thesis was not able to obtain any word-wide report dealing with these topics and
presenting them in form of a statistical overview.
The national reports are all quite different; even though they all deal with the topics of
personal injuries and claims; each of them has a different approach. While some
reports are very superficial and have only one or two statistics dealing with personal
injuries others are very detailed and several pages of statistics can be found.
Statistics showing not only the national facts, but giving a worldwide overview would
not only be interesting, but might also be valuable for practical purpose. Unfortunately,
it will be quite impossible to find any organisation that will take on the burden of
developing statistics and obtaining the necessary information in a standardized
questionnaire from the right sources (such as P&I Clubs).
68
Annex 1 ITF Compensation Scale
I. Injuries to Extremities
A. Hand, Arm, Shoulder
(If a person is left-handed, her/his left hand is assessed as right hand, and vice versa.)
Percentage
Compensation
Right
Left
--------------------------------------------------------a. Fingers
Loss of all fingers on one hand
Loss of one thumb and metacarpal bones
Loss of one thumb
Loss of extremity of one thumb
Loss of half of extremity of one thumb
Thumb with stiff extreme joint
Thumb with stiff metacarpophalangeal joint
Thumb with stiff extreme and metacarpophalangeal joints
Loss of forefinger (second finger)
Loss of middle and extreme joints of forefinger
Loss of extreme forefinger
Forefinger with stiff metacarpophalangeal joint in
outstretched position
Forefinger with 90 degrees or more stretch
deficiency in middle joint
Loss of middle finger (third finger)
Loss of middle and extreme joints of middle finger
Loss of extreme joint of middle finger
Middle finger with stiff metacarpophalangeal
joint in outstretched position
Middle finger with 90 degrees or more stretch
deficiency in middle joint
Loss of ring finger (fourth finger)
Loss of middle and extreme joints of ring finger
Loss of extreme joint of ring finger
Ring finger with stiff metacarpophalangeal joint in
outstretched position
Ring finger with 90degrees or more stretch
deficiency in middle joint
Loss of little finger (fifth finger)
Loss of middle and extreme joints of little finger
Loss of extreme joint of little finger
Loss of thumb and forefinger (1st and 2nd fingers)
Loss of extreme joints of thumb and forefinger
Loss of thumb, forefinger and middle finger
Loss of extreme joints of thumb, forefinger
and middle finger
69
55
30
50
25
25
12
8
5
3
15
10
10
5
5
5
10
8
5
5
5
8
5
3
5
5
8
5
3
40
35
18
50
45
20
Percentage
Compensation
Right
Left
---------------------------------------------------------
Loss of thumb, forefinger, middle finger and
ring finger (1st, 2nd, 3rd, and 4th fingers)
55
Loss of forefinger and middle finger (2nd and 3rd)
Loss of middle and extreme joints of forefinger
and middle finger
Loss of extreme joint of forefinger and
middle finger
Loss of forefinger, middle finger and ring finger
35
Loss of middle and extreme joints of forefinger,
middle finger and ring finger
Loss of extreme joints of forefinger, middle finger
and ring finger
Loss of forefinger, middle finger, ring finger and
little finger (2nd, 3rd, 4th and 5th)
40
Loss of middle and extreme joints of forefinger,
middle finger, ring finger and little finger
35
Loss of extreme joints of forefinger, middle finger,
ring finger and little finger
Loss of middle finger, ring finger and little
finger (3rd, 4th and 5th)
Loss of middle and extreme joints of middle finger,
ring finger and little finger
Loss of extreme joints of middle finger, ring finger
and little finger
Loss of ring finger and little finger (4th and 5th)
Loss of middle and extreme joints of ring finger
and little finger
Loss of extreme joints of middle finger and ring
finger or of ring finger and little finger
Middle finger and ring finger with 90 degrees or
more stretch deficiency in the middle joint
50
25
20
10
30
25
12
35
30
15
30
20
10
20
15
5
8
b. Hand, Wrist
Loss of one hand
60
Stiffness in good working position
Stiffness in poor working position
Fracture of radial bone healed with some dislocation
and slight functional disturbances, possible friction
Consequences of fracture of radial bone:
Forefinger to little finger down to 2cm
from the palm of the hand
70
55
10
15
5
18
Percentage
Compensation
Right
Left
--------------------------------------------------------c. Arm
Loss of one arm
Amputation of upper arm
Amputation of forearm with good
elbow movement
Amputation of forearm with poor
elbow movement
Unhealed rupture of biceps
Axillary thrombosis
70
65
65
60
60
55
65
60
5
5
d. Elbow
Stiffness in outstretched position
Stiffness in good working position
Stiffness in poor working position
Cessation of rotary function of forearm
(“upright position”)
Elbow bending reduced to 90 degrees or less
Stretch deficiency of up to 40 degrees
Stretch deficiency 40-90 degrees
45
25
30
40
20
25
20
15
15
12
3
5
e. Shoulder
All mobility reckoned with “unset” shoulder blade.
Stiffness in shoulder (with arm alongside body)
Elevation up to 90 degrees
Friction and some reduction of mobility
Habitual luxation
Luxatio acromio-clavicularis
35
15
5
10
5
f. Paralysis
Total paralysis of plexus brachialis
Total paralysis of nervus radialis on the
upper arm
Total paralysis of nervus ulnaris
Total paralysis of nervus medianus,
both sensory and motoric injuries
For sensory injuries only
70
65
25
30
20
25
35
30
10
B. Foot, Leg, Hip
a. Foot
Loss of foot with good function of prosthesis
Loss of foot with poor function of prosthesis
Amputation of tarsus with stump
capable of bearing
71
30
35
15
Percentage
Compensation
Right
Left
--------------------------------------------------------Loss of all toes on one foot
Loss of 1st toe (big toe) and some of its
metatarsal bone
Loss of first toe (big toe)
Loss of extreme joint of big toe
Big toe with stiffness in metatarsophalangeal joint
Loss of one of the other toes
Ankle joint stiff at right angle or
slight talipes equinus (up to 15 degrees)
Ankle joint stiff in pronounced talipes equinus
position
Ankle joint where rotary mobility has ceased
Fallen arches aggravated by pains
Traumatic fallen arches
10
8
5
3
5
3
15
20
5
8
10
b. Leg
Loss of one leg
Amputation at the knee or thigh with good
function of prosthesis
Amputation at the knee or thigh with poor
function of prosthesis
Loss of crus (shank) with good function of
prosthesis
Loss of crus with poor function of
prosthesis
Shortening by less than 3cm
Shortening of at least 3cm
Thigh shrinkage of at least 3 cm
(Is not, however, added to the compensation for
shortening or reduction of mobility)
Postthrombotic syndrome in one leg
Essential deterioration of varicose veins
or leg sores
Knee stiff in good position
Knee with stretch deficiency of up to 5 degrees
Knee with bending capacity reduced to 90 degrees or less
Knee with hampering looseness
Knee with strong friction during movements, with
muscle wastage exceeding 2cmas measured 10cm
above the patella and reduction of mobility
Knee with somewhat regular and hampering incarcerations
Habitual luxation of kneecap
Loss of kneecap
Well functioning totally artificial kneecap
65
50
55
30
35
3
10
8
5
8
25
3
10
10
8
5
5
5
15
c. Hip
Hip with stiffness in favourable position
Hip with severe insufficiency of hip function
Well functioning totally artificial hip joint
72
30
50
10
Percentage
Compensation
Right
Left
--------------------------------------------------------d. Paralysis
Total paralysis of nervus fibularis
Total paralysis of nervus femoralis
Ischiadiscusparesis – with good mobility
Ischiadiscusparesis – with poor mobility
10
20
10
30
II. The Head
A. The Face
Loss of all teeth (double dentures)
Loss of outer ear
Scalping
One – sided paralysis of the facialis nerves
Two – sided paralysis of the facialis nerves
Loss of sense of smell
One – sided paralysis of vocal chords with
considerable speech difficulties
Paralysis of sensory (trigeminal) nerve to the face
5
5
5
10
15
10
10
5
B. The Brain
a. Demens
Mild demens
Mild – medium severe demens
Medium severe demens
Severe demens
Total demens
15
25
40
65
100
b. Postcommotional Syndrome
8
C. The Eye
Loss of one eye
Loss of both eyes
Loss of sight of one eye
Loss of sight of both eyes
Loss of sight of one eye with complications
(e.g. glaucoma and/or contracted eye)
Loss of sight of one eye with possibility of
improvement via operation (reserve eye)
Double vision
Double vision in outermost position
73
20
100
20
100
25
18
10
3
Percentage
Compensation
Right
Left
--------------------------------------------------------Loss of binocular vision (e.g. aphakia with
visual power of at leas 6/60)
Aphakia with good contact glass function
Total one – sided ptosis
Flood of tears
Hemianopsia
Rightsided hemianopsia as a result of brain injury
15
8
18
3
40
50
Reduction of the visual power of one or both eyes is assessed in accordance with the
following decimal table or fraction table:
Decimal Table
S
0.6
0.5
0.4
0.3
0.2
0.1
0
0.6
0
0
5
10
10
15
20
0.5
0
5
5
10
10
15
20
0.4
5
5
10
15
15
20
30
0.3
10
10
15
25
35
45
55
0.2
10
10
15
35
45
60
70
0.1
15
15
20
45
60
75
85
0
20
20
30
55
70
85
100
6/18
5
10
20
30
35
40
45
50
6/24
8
10
30
35
45
50
55
60
6/36
10
12
35
45
55
65
70
75
6/60
12
15
40
50
65
75
80
85
2/60
15
18
45
55
70
80
95
100
Fraction Table
S
6/6
6/12
6/18
6/24
6/36
6/60
2/60
0
6/6
0
0
5
8
10
12
15
20
6/12
0
5
10
10
12
15
18
20
0
20
20
50
60
75
85
100
100
Visual power is assessed with the best available glasses.
D. Ears
Loss of outer ear, see under II.A. – The Face
Total loss of hearing in one ear
Total loss of hearing in both ears
10
75
Loss of hearing based on speech audiometry: assessed or calculated binaural loss of
hearing in dB with well adjusted hearing aid.
74
Percentage
Compensation
Right
Left
---------------------------------------------------------
Degree of
Loss of Hearing
HH: 0 HH: 1 HH:2 HH:3 HH:4 HH:5
CH: 0
CH:1
CH: 2
CH: 3
CH: 4
CH: 5
0
-
5
8
12
-
HH = Hearing handicap
0 – no handicap
1 – slight handicap
2 – mild to medium handicap
15
20
30
-
30
35
40
50
-
50
55
60
65
65
70
75
CH = Communication handicap
3 – considerable handicap
4 – severe handicap
5 – total handicap
Normally no compensation is paid solely in respect of use of a hearing aid.
Hampering tinnitus and distortion of hearing
3
III. Neck and Back
A. Verbal Column
a. Fracture of body of the vertebra without discharge of medulla spinalis or nerves:
Minor Fracture
With minor reduction of mobility
5
Medium severe fracture
Without reduction of mobility
With reduction of mobility
8
12
Very severe fracture or several medium severe
fractures, possibly without formation of gibbus (hump)
Slight to some reduction of mobility
Very severe reduction of mobility
If support (neck collar or support corset) is used
Pain – local or transmitted to extremities
15
20
5
2
b. Fracture with Discharge of Medulla Spinalis or Nerves
Assessed in accordance with the above rules with a supplementary degree for the
discharge of nerves assessed in accordance with the other rules specified in the table.
75
Percentage
Compensation
Right
Left
--------------------------------------------------------B. Consequences of Slipped Disc
12
C. Other Back Injuries
a. Cervical Column
Some reduction of mobility and/or local pains
If a supportive device (neck collar) is used
Radiating pain – root irritating
8
12
12
b.Other Parts of the Vertebral Column
Back pains without reduction of mobility
If a supportive device (corset) is used
Back pains with some reduction of mobility
Back pains with considerable reduction of mobility
5
8
12
25
D. Injuries to the Medulla Spinalis
Mild but lasting consequences – without bladder
(possibly defecation) symptoms (objectively
determinable neurological symptoms on a modest scale)
Mild but lasting consequences – with bladder
(possibly defecation) symptoms (objectively
determinable neurological symptoms on a modest scale)
Other lasting consequences without bladder symptoms as
defined above
Other lasting consequences with bladder symptoms as
defined above
Incontinence – please see Section V.
20
25
30
35
IV. Heart and Lungs
Heart and lung ailments are assessed with regard to the limiting of the functional
capacity
caused by the ailment, applying the following division into function groups:
1. No limitation of physical activity
2. Minor limitation of physical activity
Symptoms appear only during
strenuous activity
3. Considerable limitation of physical activity
Symptoms appear during low levels
of activity
4. Any form of physical activity produces
symptoms which can also be present during
periods of rest
76
3
20
45
70
Steps are taken to support the division into functions by means of objective
measurements for lung function, such as the forced exhalation volume in the first
second, FEV 1.0.
Assuming that the case is one of permanent reduction of FEV 1.0
FEV 1.0 of over 2 litres corresponds roughly to function group 1,
FEV 1.0 of 1.5-2 litres corresponds roughly to function group 2,
FEV 1.0 of about 1 litre corresponds roughly to function group 3, and
FEV 1.0 of about 0.5 litre corresponds roughly to function group 4.
.
Percentage
Compensation
Right
Left
---------------------------------------------------------
V. Abdominal Cavity and Pelvis
Loss of spleen
Loss of one kidney
Well functioning transplanted kidney
Anus praeternaturalis
Minor incontinence (i.e. imperious
urination, possibly defecation)
Expulsive incontinence
Abdominal hernia, inoperable
5
10
25
10
10
25
20
Loss of testicles
Loss of both ovaries before menopause
Loss of both ovaries after menopause
Loss of one or both epididymides
Urethra stricture, if a bougie must be used
Impotence
10
10
3
3
15
Not covered
77
Annex 2 POEA Compensation scale
Schedule of disability or impediment for injuries suffered and diseases including
occupational diseases or illness contracted.
HEAD
1. Apperture unfilled with bone not over three (3) inches without brain injury........Gr. 9
2. Apperture unfilled with bone over three (3) inches without brain injury..............Gr. 3
3. Sever paralysis of both upper or lower extremities or one upper and
one lower extremity ............................................................................................Gr. 1
4. Moderate paralysis of two (2) extremities producing moderate difficulty
in movements with self-care activities................................................................Gr. 6
5.Slight paralysis affecting one extremity producing slight difficulty
with self-care activities ........................................................................................Gr. 10
6. Severe mental disorder or Severe Complex Cerebral function disturbance
or post-traumatic psychoneurosis which require regular aid and attendance
as to render worker permanently unable to perform any work...........................Gr. 1
7. Moderate mental disorder or moderate brain functional disturbance which
limits worker to the activities or daily living with some directed care
or attendance .....................................................................................................Gr. 6
8. Slight mental disorder or disturbance that requires little attendance or aid
and which interferes to a slight degree with the working capacity of
the claimant........................................................................................................Gr. 10
9. Incurable imbecility.............................................................................................Gr. 1
FACE
1. Severe disfigurement of the face or head as to make the worker so repulsive
as to greatly handicap in securing or retaining employment, thereby being
no permanent functional disorder.......................................................................Gr. 2
2. Moderate facial disfigurement involving partial ablation of the nose
with big scars on face or head ...........................................................................Gr. 9
3. Partial ablation of the nose or partial avulsion of the scalp ................................Gr. 9
4. Complete loss of the power of mastication and speech function .......................Gr. 1
5. Moderate constriction of the jaw resulting in moderate degree
of difficulty in chewing and moderate loss of the power or the
expression of speech .........................................................................................Gr. 6
6. Slight disorder of mastication of speech function due to traumatic
injuries to jaw or cheek bone..............................................................................Gr. 12
EYES
1. Blindness or total and permanent loss of vision of both eyes ............................Gr. 1
2. Total blindness of one (1) eye and fifty percent (50%) loss of vision of
the other eye ......................................................................................................Gr. 5
3. Loss of one eye or total blindness of one eye....................................................Gr. 7
4. Fifty percent (50%) loss of vision of one eye .....................................................Gr. 10
5. Lagopthalmos, one eye......................................................................................Gr. 12
6. Ectropion, one eye .............................................................................................Gr. 12
7. Ephiphora, one eye ............................................................................................Gr. 12
8. Ptosis, one eye...................................................................................................Gr. 12
NOTE: (Smeller’s Chart – used to grade for near and distant vision)
78
NOSE AND MOUTH
1. Considerable stricture of the nose (both sides) hindering breathing..................Gr. 11
2. Loss of the sense of hearing in one ear .............................................................Gr. 11
3. Injuries to the tounge (partial amputation or adhesion) or palate-causing
defective speech ................................................................................................Gr. 10
4. Loss of three (3) teeth restored by prosthesis....................................................Gr. 14
EARS
1. For the complete loss of the sense of hearing in both ears ...............................Gr. 3
2. Loss of two (2) external ears..............................................................................Gr. 8
3. Complete loss of the sense of hearing in one ear..............................................Gr. 11
4. Loss of one external ear.....................................................................................Gr. 12
5. Loss of one half (1/2) of an external ear ............................................................Gr. 14
NECK
1. Such injury to the throat as necessitates the wearing of a tracheal tube ...........Gr. 6
2. Loss of speech due to injury to the vocal cord ...................................................Gr. 9
3. Total stiffness of neck due to fracture or dislocation of the cervical pines .........Gr. 8
4. Moderate stiffness or two thirds (2/3) loss of motion of the neck .......................Gr. 10
5. Slight stiffness of neck or one third (1/3) loss of motion.....................................Gr. 12
CHEST – TRUNK – SPINE
1. Fracture of four (4) or more ribs resulting to severe limitation of chest
expansion...........................................................................................................Gr. 6
2. Fracture of four (4) or more ribs with intercostal neuralgia resulting in
moderate limitation of chest expansion..............................................................Gr. 9
3. Slight limitation of chest expansion due to simple rib functional without
myositis or intercostal neuralgia........................................................................Gr. 12
4. Fracture of the dorsal or lumber spines resulting to severe or total rigidity
of the trunk or total loss of lifting power of heavy objects...................................Gr. 6
5. Moderate rigidity or two thirds (2/3) loss of motion or lifting power of
the trunk .............................................................................................................Gr. 8
6. Slight rigidity or one third (1/3) loss of motion or lifting power of
the trunk .............................................................................................................Gr. 11
7. Injury to the spinal cord as to make walking impossible without the aid
of a pair of crutches............................................................................................Gr. 4
8. Injury to the spinal cord as to make walking impossible even with the aid
of a pair of crutches.............................................................................................Gr. 1
9. Injury to the spinal cord resulting to incontinence of urine and feces.................Gr. 1
ABDOMEN
1. Loss of the spleen ..............................................................................................Gr. 8
2. Loss of one kidney .............................................................................................Gr. 7
3. Severe residuals of impairment of intra-abdominal organs which requires
regular aid and attendance that will unable worker to seek any
79
gainful employment ............................................................................................Gr. 1
4. Moderate residuals of impairment of intra-abdominal organs secondary
to trauma resulting to impairment of nutrition, moderate tenderness, nausea,
vomiting, constipation or diarrhea ......................................................................Gr. 7
5. Slight residuals or disorder of the intra-abdominal organs resulting in
impairment of nutrition, slight tenderness and/orconstipation or
diarrhea ..............................................................................................................Gr. 12
6. Inguinal hernia secondary to trauma or strain....................................................Gr. 12
PELVIS
1. Fracture of the pelvic rings as to totally incapacitate worker to work .................Gr. 1
2. Fracture of the pelvic ring resulting to deformity and lameness.........................Gr. 6
URINARY AND GENERATIVE ORGANS
1. Total loss of penis ..............................................................................................Gr. 7
2. Total loss of both testicles..................................................................................Gr. 7
3. Total loss of one testicle.....................................................................................Gr. 11
4. Scars on the penis or destruction of the parts of the cavernous body or
urethra interfering with erection or markedly affecting coitus..............................Gr. 9
5. Loss of one breast..............................................................................................Gr. 11
6. Prolapse of the uterus ........................................................................................Gr. 6
7. Great difficulty in urinating..................................................................................Gr. 13
8. Incontinence of urine..........................................................................................Gr. 10
THUMBS AND FINGERS
1. Total loss of one thumb including metacarpal bone...........................................Gr. 9
2. Total loss of thumb.............................................................................................Gr. 10
3. Total loss on one index finger including metacarpal bone .................................Gr. 10
4. Total loss of one index finger .............................................................................Gr. 11
5. Total loss of one middle finger including metacarpal bone ................................Gr. 11
6. Total loss of one middle finger ...........................................................................Gr. 12
7. Total loss of one ring finger including metacarpal bone.....................................Gr. 12
8. Total loss of one ring finger................................................................................Gr. 13
9. Total loss of one small finger including metacarpal bone ..................................Gr. 13
10. Total loss of one small finger ...........................................................................Gr. 14
Loss of two (2) or more fingers: Compensation for the loss or losses of use of two (2) or
more fingers or one (1) phalanges of two or more digits of a hand must be proportioned
to the loss of the hand occasioned thereby but shall not exceed the compensation for
the loss of a hand:
a. Loss of five (5) fingers of one hand....................................................................Gr. 6
b. Loss of thumb, index fingers and any of 2 or more fingers of the same hand ...Gr. 5
c. Loss of the thumb, index finger and any one of the remaining fingers of
the same hand ...................................................................................................Gr. 7
d. Loss of the thumb and index finger ....................................................................Gr. 8
e. Loss of three (3) fingers of one hand not including thumb and index finger ......Gr. 9
f. Loss of the index finger and any one of the other fingers of the same
hand excluding thumb .........................................................................................Gr. 9
80
g. Loss of two (2) digits of one hand not including thumb and index finger ...........Gr. 10
h. Loss of ten (10) fingers of both hands................................................................Gr. 3
HANDS
1. Total loss of use of both hands or amputation of both hands at wrist
joints or above....................................................................................................Gr. 1
2. Amputation of a hand at carpo-metacarpal joints...............................................Gr. 5
3. Amputation between wrist and elbow joint .........................................................Gr. 5
4. Loss of grasping power for small objects between the fold of the
finger of one hand ..............................................................................................Gr. 10
5. Loss of grasping power for large objects between fingers and
palm of one hand ...............................................................................................Gr. 10
6. Loss of opposition between the thumb and tips of the fingers and
palm of one hand ...............................................................................................Gr. 9
7. Ankyclosed wrist in normal position ...................................................................Gr. 10
8. Ankyclosed wrist in position one third (1/3) flexed or half extended
and/or severe limited action of a wrist................................................................Gr. 11
SHOULDER AND ARM
1. Inability to turn forearm (forearm in normal position-supination)........................Gr. 11
2. Inability to turn forearm (forearm in abnormal position-pronation) .....................Gr. 10
3. Disturbance of the normal carrying angel or weakness of an arm
or forearm due to deformity of moderate atrophy of muscles ............................Gr.11
4. Stiff elbow at full flexion or extension (one side) ................................................Gr. 7
5. Stiff elbow at right angel of flexion .....................................................................Gr. 8
6. Flail elbow joint...................................................................................................Gr. 9
7. Pseudoarthrosis of the humerus with musculospiral or radial paralysis.............Gr. 6
8. Ankylosis of one (1) shoulder, the shoulder blade remaining mobile.................Gr. 9
9. Ankylosis of one (1) shoulder, the shoulder blade remaining rigid.....................Gr. 8
10. Unreduced dislocation of one (1) shoulder ......................................................Gr. 8
11. Ruptured biceps or pseudoarthrosis of the humerus, close (one side)............Gr.11
12. Inability to raise arm more than halfway from horizontal to
perpendicular ...................................................................................................Gr. 11
13.Ankylosis of the shoulder joint not permitting arm to be raised
above a level with a shoulder and/or irreducible fracture or faulty
union collar bone...............................................................................................Gr. 10
14. Total paralysis of both upper extremites ..........................................................Gr. 1
15.Total paralysis of one upper extremity ..............................................................Gr. 3
16. Amputation of one (1) upper extremity at or above the elbow .........................Gr. 4
17. Scar the seize of the palm in one extremity .....................................................Gr. 14
LOWER EXTREMITIES
1. Loss of a big toe.................................................................................................Gr. 12
2. Loss of a toe other then the big one...................................................................Gr. 14
3. Loss of ten (10) digits of both feet......................................................................Gr. 5
4. Loss of a great toe of one foot plus one toe.......................................................Gr. 10
5. Loss of two toes not including great toe or toe next to it ....................................Gr. 12
6. Loss of three (3) toes excluding great toe of a foot............................................Gr. 10
7. Loss of four (4) excluding great toe of a foot......................................................Gr. 9
81
8. Loss of great toe and two (2) other toes of the same foot..................................Gr. 9
9. Loss of five digits of a foot..................................................................................Gr. 8
10.Loss of both feet at ankle joint or above ...........................................................Gr. 1
11. Loss of one foot at ankle joint or above ...........................................................Gr. 6
12. Depression of the arch of a foot resulting in weak foot ....................................Gr. 13
13. Loss of one half (1/2) metatarsus of one (1) foot .............................................Gr. 8
14. Loss of whole metatarsus or forepart of foot....................................................Gr. 7
15. Tearing of Achilles tendon resulting in the impairment of active
flexion and extension of a foot .........................................................................Gr. 12
16. Malleolar fracture with displacement of the foot inward or outward .................Gr. 10
17. Complete immobility or an ankle joint in abnormal position .............................Gr. 10
18. Complete immobility or an ankle joint in normal position .................................Gr. 11
19. Total loss of a leg or amputation at or above the knee ....................................Gr. 3
20. Stretching leg of the ligaments of a knee resulting in instability
of the joint ........................................................................................................Gr. 10
21. Ankylosis of a knee in genuvalgum of varum...................................................Gr. 10
22. Pseudoarthrosis of a knee cap.........................................................................Gr. 10
23. Complete immobility of a knee joint in full extension........................................Gr. 10
24. Complete immobility of a knee joint in strong flexion .......................................Gr. 7
25. Complete immobility of a hip joint in flexion of the thigh ..................................Gr. 5
26. Complete immobility of a hip joint in full extension of the thigh........................Gr. 9
27. Slight atrophy of calf of leg muscles without apparent shortening or
joint lesion or disturbance of weight-being line ................................................Gr. 13
28. Shortening of a lower extremity from one to three centimetres with either
joint lesion or disturbance of weight-bearing joint ............................................Gr. 13
29. Shortening of 3 to 6 cm. With slight atrophy of calf or thigh muscles...............Gr. 12
30. Shortening of 3 to 6 cm. With either joint lesion or disturbance of
weight-bearing joint ..........................................................................................Gr. 11
31. Irregular union of fracture with joint stiffness and with shortening
of 6 to 9 cms.....................................................................................................Gr. 10
32. Irregular union of fracture in a thigh or leg with shortening of
6 to 9 cms.........................................................................................................Gr. 10
33. Failure of fracture of both hips to unite.............................................................Gr. 1
34. Failure of fracture of a hip to unite ...................................................................Gr. 3
35. Paralysis of both lower extremities...................................................................Gr. 1
36. Paralysis of one lower extremity ......................................................................Gr. 3
37. Scar the seize of palm or larger left on an extremity........................................Gr. 14
NOTE: Any item in the schedule classified under Grade 1 shall be considered or shall
constitute total and permanent disability.
82
SCHEDULE OF DISABILITY ALLOWANCES
Impediment Grade
1
2
3
4
5
6
7
8
9
10
11
12
13
14
US$ 50,000
“
“
“
“
“
“
“
“
“
“
“
“
“
Impediment
x
x
x
x
x
x
x
x
x
x
x
x
x
x
120,00%
88,81%
78,36%
68,66%
58,96%
50,00%
41,80%
33,59%
26,12%
20,15%
14,93%
10,45%
6,72%
3,74%
To be paid in Philippine Currency equivalent at the exchange rate prevailing during the
time of payment.
OCCUPATIONAL DISEASES
For an occupational disease and the resulting disability or death to be compensable, all
of the following conditions must be satisfied:
1. The seafarer’s work must involve the risks described herein;
2. The disease was contracted as a result of the seafarer’s exposure to the described
risks;
3. The disease was contracted with a period of exposure and under such other factors
necessary to contract it;
4. There was no notorious negligence on the part of the seafarer.
83
The following diseases are considered as occupational when contracted under working
conditions involving the risks described herein:
CCUPATIONAL DISEASE
NATURE OF EMPLOYMENT
1. Cancer of the epithelial lining of the
baldder. (Papilloma of the bladder)
Work involving exposure to alphanaphthylamine, beta-naphtylamin or
benzidine or any part of the salts; and
auramine or magenta.
2. Cancer, epithellomatous or ulceration
of the skin or of the corneal surface of the
eye due to tar, pitch, bitumen, mineral oil
or paraffin, or compound product or
residue of these substances.
The use or handling of, exposure to tar,
pitch, bitumen, mineral oil (including
paraffin) soot or any compound product or
residue of any of these substances.
3. Deafness
Any industrial operation having excessive
noise particularly in the higher
frequencies.
4. Decompression sickness
(a) Caissons Disease
(b) Aeroembolism
Any process carried on in compressed or
rarefield air
5. Dermatitis due to irritants and
sensitizers
Any process carried on in rarefield air
The use or handling of chemical agents
which are skin irritants and sensitizers.
6. Infection (Brucellosis)
Any occupation involving the handling of
contaminated food and drink particularly
milk, butter and cheese of infected goats
and cows.
7. Ionizing radiation disease,
inflammation, ulceration or mallgnant
disease of skin or subcutaneous tissues
of he bones or leukaemia, or anemia of
the asplastic due to X-rays, ionizing
particle, radium or radioactive
substances.
Exposure to X-rays, ionizing particles of
radium or other radioactive substance or
other forms of radiant energy.
8. Poisoning and its sequelae caused by:
All working exposure to the risk
concerned.
(a) Ammonia
All working exposure to the risk
concerned.
(b) Arsenic or its toxic compound
All working exposure to the risk
concerned.
(c) Benzene or its toxic homologues, nitro
and amino-toxic derivatives of benzene or
its homologue.
All working exposure to the risk
concerned.
84
(d) Beryllium or its toxic compounds
All working exposure to the risk
concerned.
(e) Brass, zinc or nickel
All working exposure to the risk
concerned.
(f) Carbon dioxide
All working exposure to the risk
concerned.
(g) Carbon bisulfide
All working exposure to the risk
concerned.
(h) Carbon monoxide
All working exposure to the risk
concerned.
(i) Chlorine
All working exposure to the risk
concerned.
(j) Chrome of its toxic compounds
All working exposure to the risk
concerned.
(k) Dinitrophenol or its homologue
All working exposure to the risk
concerned.
(l) Halogen derivates of Hydrocarbon of
the aliphatic series
All working exposure to the risk
concerned.
(m) Lead or its toxic compounds
All working exposure to the risk
concerned.
(n) Manganese or its toxic compounds
All working exposure to the risk
concerned.
(o) Mercury or its toxic compounds
All working exposure to the risk
concerned.
(p) Nitrous fumes
All working exposure to the risk
concerned.
(q) Phosgene
All working exposure to the risk
concerned.
(r) Phosphorous or its toxic compounds
All working exposure to the risk
concerned.
(s) Sulfur dioxide
All working exposure to the risk
concerned.
9. Disease caused by abnormalities in
temperature and humidity
Any occupation involving exposure to
excessive heat or cold.
(a) Heat stroke/cramps/exhaustion
Any occupation involving exposure to
excessive heat or cold.
85
(b) Chilblain/frostbite/freezing
Any occupation involving exposure to
excessive heat or cold.
(c) Immersion foot/general hypothermia
Any occupation involving exposure to
excessive heat or cold.
10. Vascular disturbance in the upper
extremities due to continuous vibration
from pneumatic tools or power drills,
riveting machines or hammers
Any occupation causing repeated
motions, vibrations and pressure of upper
extremities.
11. Cardio-Vascular Disease. Any of the following conditions must be met:
a. If the heart disease was known to have been present during employment, there must
be proof that an acute exacerbation was clearly precipitate by the unusual strain by
reasons of the nature of his work.
b. The strain of work that brings about an acute attack must be sufficient severity and
must be followed within 24 hours by the clinical signs of a cardiac insult to constitute
causal relationship.
c. If a person who was apparently asymptomatic before being subjected to strain at
work showed signs and symptoms of cardiac injury during the performance of his work
and such symptoms and signs persisted, it is reasonable to claim a causal relationship.
12. Cerebro-Vascular Accidents. All of the following conditions must be met:
a. There must be a history, which should be proved, or trauma at work (to the head
specially) due to unusual and extraordinary physical or mental strain or event, or undue
exposure to noxious gases in industry.
b. There must be a direct connection between the trauma or exertion in the course of
employment and the worker’s collapse.
c. If the trauma or exertion then and there caused a brain hemorrhage, the injury may
be considered as arising from work.
13. Pneumonia. All of the following conditions must be met:
a. There must be an honest and definite history of wetting and chilling during the
course of employment and also, of injury to the chest wall with or without rib fracture, or
inhalation of noxious gases, fumes and other deleterious substances in the place of
work.
b. There must be direct connection between the offending of agent or event and the
seafarer’s illness.
c. The signs of consolidation should appear soon (within a few hours) and the
symptoms of initial chilling and fever should at least be 24 hours after the injury or
exposure.
86
d. The patient must manifest any of the following symptoms with a few days of the
accident: (1) severe chill and fever; (2) headache and pain, agonizing in character, in
the side of the body; (3) short, dry, painful cough with blood-tinged expectoration; and
(4) physical signs of consolidation, with fine rales.
14. Hernia. All of the following conditions must be met:
a. The hernia should be of recent origin.
b. It’s appearance was accompanied by pain, discoloration and evidence of a tearing of
the tissues.
c. The disease was immediately preceded by undue or severe strain arising out of and
in the course of employment.
d. A protrusion of mass should appear in the area immediately following the alleged
strain.
15. Bronchial Asthma. All of the following conditions must be met:
a. There is no evidence of history of asthma before employment.
b. The allergen is present in the working conditions.
c. Sensitivity test to allergens in the working environment should yield positive results.
d. A provocative test should show positive results.
16. Osteoarthritis
Any occupation involving a) joint strain from carrying heavy loads, or unduly heavy
physical Labor, as among laborers and mechanics; b) minor or major injuries to the
joint; c) excessive use or constant strenuous usage of a particular joint, as among
sportsmen, particularly those who have engaged in the more active sports activities; d)
extreme temperature changes (humidity, heat and cold exposure); and e) faulty work
posture or use of vibratory tools.
17. Peptic Ulcer
Any occupation involving prolonged emotional or physical stress, as among
professional people, transport workers and the like.
18. Pulmonary Tuberculosis
In addition to working conditions already listed under Philippine Decree No. 626, as
amended, any occupation involving constant exposure to harmful substances in the
working environment, in the form of gases, fumes, vapors and dust, as in chemical and
textile factories; overwork of fatigue; and exposure to rapid variations in temperature,
high degree of humidity and bad weather conditions.
87
19. Viral Hepatitis
In addition to working conditions already listed under Philippine Decree No. 626 as
amended, any occupation involving: exposure to a source of infection through ingestion
of water, milk, or other foods contaminated with hepatitis virus; Provided that the
Physician determining the causal relationship between the employment and the illness
should be able to indicate whether the disease of the afflicted worker manifested itself
while he was so employed, knowing the incubation period thereof.
20. Essential Hypertension
Hypertension classified as primary or essential is considered compensable if it causes
impairment of function of body organs like kidneys, heart, eyes and brain, resulting in
permanent disability; Provided, that, the following document substantiate it: (a) chest xray report, (b) ECG report, (c) blood chemistry report, (d) funduscopy report, and (f) CT scan.
21. Asbestosis. All the following conditions must be met:
a. The seafarer must have been exposed to Asbestos dust in the work place, as duly
certified to by the employer, or by a medical institution, or competent medical
practitioner acceptable to or accredited by the System.
b. The chest X-ray report of the employee must show findings of asbestos or asbestosrelated disease, e.g. pleural plaques, pleural thickening, effusion, neoplasm and
interstitial fibrosis; and
c. In case of ailment is discovered after the seafarer’s retirement/separation from the
company, the claim must be filed with the System within three (3) years from discovery.
88
Annex 3 German compensation schedule
Loss of:
- both eyes, both arms or hands, both legs or feet,
one arm or one hand plus one leg or one foot, or when
suffering from incurable mental illness caused by an
accident
100%
- one arm or one hand
70%
- one leg or one foot
70%
- one thumb
25%
- one forefinger
16%
- any other finger
10%
-one big toe
8%
- any other toe
3%
Total loss of:
- the sight of one eye
35%
- if the sight of the other eye was already lost
before the incident
70%
- hearing in both ears
70%
- hearing in one ear
20%
- if the hearing of the other ear was already
lost before the incident
50%
- smell
10%
- taste
5%
89
Annex 4 Athens Convention Signatories
Athens Convention relating
to the
Carriage
of passengers
and their luggage by sea
(PAL 1974)
Done at Athens:
13 December 1974
Entered into force:
28 April 1987
Argentina (accession)1
Bahamas (accession)
Barbados (accession)
Belgium (accession)
China5 (accession)
Croatia (accession)
Dominica (accession)
Egypt (accession)
Equatorial Guinea (accession)
Estonia (accession)
Georgia (accession)
Greece (acceptance)
Guyana (accession)
Ireland (accession)
Jordan (accession)
Latvia (accession)
Liberia (accession)
Luxembourg (accession)
Malawi (accession)
Marshall Islands (accession)
Poland (ratification)
Russian Federation2
(accession)1
Spain (accession)
Switzerland (ratification)
Tonga (accession)
Ukraine (accession)
United Kingdom (ratification)3
Date of deposit of instrument
Date of entry into force
26.V.1983
28.IV.1987
7.VI.1983
28.IV.1987
6.V.1994
4.VIII.1994
15.VI.1989
13.IX.1989
1.VI.1994
30.VIII.1994
12.I.1998
12.IV.1998
31.VIII.2001
29.XI.2001
18.X.1991
16.I.1992
24.IV.1996
23.VII.1996
8.X.2002
6.I.2003
25.VIII.1995
23.XI.1995
3.VII.1991
1.X.1991
10.XII.1997
10.III.1998
24.II.1998
25.V.1998
3.X.1995
1.I.1996
6.XII.2001
6.III.2002
17.II.1981
28.IV.1987
14.II.1991
15.V.1991
9.III.1993
7.VI.1993
29.XI.1994
27.II.1995
28.I.1987
28.IV.1987
27.IV.1983
28.IV.1987
8.X.1981
28.IV.1987
15.XII.1987
14.III.1988
15.II.1977
28.IV.1987
11.XI.1994
9.II.1995
31.I.1980
28.IV.1987
90
Vanuatu (accession)
Yemen (accession)
13.I.1989
13.IV.1989
6.III.1979
28.IV.1987
2 As from 26.XII.1991 the membership of the USSR in the Convention is continued by
the Russian Federation.
3 The United Kingdom declared ratification to be effective also in respect of:
Bailiwick of Jersey
Bailiwick of Guernsey
Isle of Man
Bermuda
British Virgin Islands
Cayman Islands
Falkland Islands*
Gibraltar
Hong Kong**
Montserrat
Pitcairn
Saint Helena and Dependencies
4 On 3.X.1990 the German Democratic Republic acceded to the Federal Republic of
Germany. The German Democratic Republic had acceded to the Convention on
29.VIII.1979.
5 Applies to the Hong Kong Special Administrative Region with effect from 1.VII.1997.
* A dispute exists between the Governments of Argentina and the United Kingdom of
Great Britain and Northern Ireland concerning sovereignty over the Falkland Islands
(Malvinas).
** Ceased to apply to Hong Kong with effect from 1.VII.1997.
Declarations, Reservations and Statements
Argentina(1)
The instrument of accession of the Argentine Republic contained a declaration of nonapplication of the Convention under article 22, paragraph 1, as follows (in the Spanish
language):
[Translation]
"The Argentine Republic will not apply the Convention when both the passengers and
the carrier are Argentine nationals".
The instrument also contained the following reservations:
[Translation]
"The Argentine Republic rejects the extension of the application of the Athens
Convention relating to Carriage of Passengers and Their Luggage by Sea, 1974,
adopted in Athens, Greece, on 13 December 1974, and of the Protocol to the Athens
Convention relating to the Carriage of Passengers and Their Luggage by Sea, 1974,
approved in London on 19 December 1976, to the Malvinas Islands as notified by the
United Kingdom of Great Britain and Northern Ireland to the Secretary-General of the
International Maritime Organization (IMO) in ratifying the said instrument on 31 January
1980 under the incorrect designation of "Falkland Islands", and reaffirms its sovereign
rights over the said Islands which form an integral part of its national territory".
German Democratic Republic
The instrument of accession of the German Democratic Republic was accompanied by
the following reservation (in the German language):
[Translation]
"The German Democratic Republic declares that the provisions of this Convention shall
91
have no effect when the passenger is a national of the German Democratic Republic
and when the performing carrier is a permanent resident of the German Democratic
Republic or has its seat there".
USSR
The instrument of accession of the Union of Soviet Socialist Republic contained a
declaration of non-application of the Convention under article 22, paragraph 1.
(1) A communication dated 19 October 1983 from the Government of the United
Kingdom, the full text of which was circulated by the depositary, includes the following:
"The Government of the United Kingdom of Great Britain and Northern Ireland reject
each and every of these statements and assertions. The United Kingdom has no doubt
as to its sovereignty over the Falkland Islands and thus its right to include them within
the scope of application of international agreements of which it is a party. The United
Kingdom cannot accept that the Government of the Argentine Republic has any rights
in this regard. Nor can the United Kingdom accept that the Falkland Islands are
incorrectly designated".
92
Annex 5 Montreal Convention Signatories
CONVENTION FOR THE UNIFICATION OF CERTAIN RULES
FOR INTERNATIONAL CARRIAGE BY AIR
DONE AT MONTREAL ON 28 MAY 1999
State
Entry into
force:
The Convention entered into force on
4 November 2003.
Status:
62 Parties.
Date of deposit of instrument of ratification, Date of
Date of acceptance (A), approval (AA)
entry into
force
signature or accession (a)
Albania
20/10/04 (a)
19/12/04
Austria (10)
29/04/04 (a)
28/06/04
02/02/01(a)
04/11/03
02/01/02 (a)
04/11/03
Bahamas
28/05/99
Bahrain
Bangladesh
28/05/99
Barbados
Belgium (1)(15)
Belize
Benin
Bolivia
28/05/99 29/04/04
28/05/99 24/08/99
28/05/99 30/03/04
28/05/99
Botswana
Brazil
28/06/04
04/11/03
29/05/04
28/03/01 (a)
04/11/03
10/11/03 (a)
09/01/04
03/08/99
Bulgaria
Burkina Faso
28/05/99
Cambodia
28/05/99
Cameroon
Canada (6)
27/09/01 05/09/03
01/10/01 19/11/02
Central African Republic
25/09/01
Cape Verde
23/08/04 (a)
Chile
28/05/99
China
28/05/99
Colombia
15/12/99 28/03/03
Costa Rica
20/12/99
Côte d'Ivoire
28/05/99
Cuba
28/05/99
Cyprus
20/11/02 (a)
Czech Republic (3)
Denmark (1)(11)
28/05/99 16/11/00
28/05/99 29/04/04
Dominican Republic
28/05/99
Estonia
Finland (4)
France (1)
04/02/02 10/04/03
09/12/99 29/04/04
28/05/99 29/04/04
93
04/11/03
04/11/03
22/10/04
04/11/03
04/11/03
04/11/03
28/06/04
04/11/03
28/06/04
28/06/04
Gabon
28/05/99
Gambia
10/03/04
09/05/04
Germany (1)(12)
28/05/99 29/04/04
28/06/04
Ghana
28/05/99
Greece (1)
Hungary
28/05/99 22/07/02
08/11/04 (a)
04/11/03
07/01/05
Iceland
Ireland (1)
Italy (1)
28/05/99 17/06/04
16/08/00 29/04/04
28/05/99 29/04/04
16/08/04
28/06/04
28/06/04
Jamaica
28/05/99
Japan (8)
Jordan
Kenya
Kuwait
20/06/00 (A)
05/10/00 12/04/02
28/05/99 07/01/02
28/05/99 11/06/02
Latvia
17/12/04 (A)
04/11/03
04/11/03
04/11/03
04/11/03
15/02/05
Lithuania (17)
Luxembourg (2)
28/05/99 30/11/04
29/02/00 29/04/04
29/01/05
28/06/04
Madagascar
Malta
28/05/99
28/05/99 05/05/04
04/07/04
Mauritius
28/05/99
Mexico
Monaco
28/05/99 20/11/00
28/05/99 18/08/04
Mongolia
05/10/04 (a)
04/11/03
17/10/04
04/12/04
Mozambique
28/05/99
Namibia
Netherlands (14)
New Zealand (5)
Niger
28/05/99 27/09/01
30/12/99 29/04/04
13/07/01 18/11/02
28/05/99
04/11/03
28/06/04
04/11/03
Nigeria
28/05/99 10/05/02
04/11/03
Norway
29/04/04 (a)
Pakistan
28/05/99
Panama
Paraguay
Peru
28/05/99 13/09/02
17/03/00 29/03/01
07/09/99 11/04/02
Poland
28/05/99
Portugal (1)
Romania
28/05/99 28/02/03
18/11/99 20/03/01
Qatar (16)
28/06/04
04/11/03
04/11/03
04/11/03
04/11/03
04/11/03
15/11/04 (a)
14/01/05
29/03/04 (a)
28/05/04
Saint Vincent and the
Grenadines
Saudi Arabia
28/05/99 15/10/03
Senegal
28/05/99
Slovakia
Slovenia
28/05/99 11/10/00
28/05/99 27/03/02
South Africa
28/05/99
94
14/12/03
04/11/03
04/11/03
Spain (13)
14/01/00 29/04/04
Sudan
28/05/99
Swaziland
28/05/99
Sweden (1)
27/08/99 29/04/04
Switzerland
28/05/99
Syrian Arab Republic
The former Yugoslav Republic
of Macedonia
Togo
28/06/04
28/06/04
18/07/02 (a)
04/11/03
15/05/00 (a)
04/11/03
20/11/03 (a)
19/01/04
07/07/00 (a)
04/11/03
11/02/03 (a)
04/11/03
28/05/99
Tonga
Turkey
28/05/99
United Arab Emirates
United Republic of Tanzania
United States (7)
United Kingdom (1)
28/05/99 05/09/03
28/05/99 29/04/04
Uruguay
09/06/99
Zambia
28/05/99
Regional Economic
Integration Organisations
European Community (9)
09/12/99 29/04/04 (AA)
04/11/03
28/06/04
28/06/04
(1) Upon signature of the Convention, this State, Member State of the European Community, declared
that, “in accordance with the Treaty establishing the European Community, the Community has
competence to take actions in certain matters governed by the Convention”.
(2) On 3 October 2000, ICAO received from Luxembourg the following declaration: “The Grand
Duchy of Luxembourg, Member State of the European Community, declares that in accordance with the
Treaty establishing the European Community, the Community has competence to take actions in certain
matters governed by the Convention”.
(3) Upon deposit of its instrument of ratification, the Czech Republic notified ICAO that “as a Member
of the International Monetary Fund, [the Czech Republic] shall proceed in accordance with Article 23,
paragraph 1 of the Convention”.
(4) By a Note dated 13 July 2000, Finland transmitted a declaration dated 7 July 2000 signed by the
Minister for Foreign Trade, setting forth the wording quoted in note (1) above.
(5) Upon deposit of its instrument of accession (deemed to be an instrument of ratification), New
Zealand declared “that this accession shall extend to Tokelau”.
(6) At the time of ratification, Canada made the following declaration: “Canada declares, in accordance
with Article 57 of the Convention for the Unification of Certain Rules for International Carriage by Air,
done at Montreal on 28 May 1999 and signed by Canada on 1 October 2001, that the Convention does not
apply to the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or
leased by Canada, the whole capacity of which has been reserved by or on behalf of such authorities
[Article 57(b)].”
(7)
The instrument of ratification of the United States contains the following declaration:
95
“Pursuant to Article 57 of the Convention, the United States of America declares that the Convention
shall not apply to international carriage by air performed and operated directly by the United States of
America for non-commercial purposes in respect to the functions and duties of the United States of
America as a sovereign State.”
(8) By a Note dated 24 October 2003 signed by the Minister for Foreign Affairs, Japan informed ICAO
“that, in accordance with Article 57(a) of the Convention for the Unification of Certain Rules for
International Carriage by Air, done at Montreal on 28 May 1999, the Government of Japan declares that
this Convention shall not apply to international carriage by air performed and operated directly by the
Government of Japan for non-commercial purposes in respect to its functions and duties as a sovereign
State.”
(9)
The instrument of approval by the European Community contains the following declaration:
“Declaration concerning the competence of the European Community with regard to matters governed by
the Convention of 28 May 1999 for the unification of certain rules for international carriage by air (the
Montreal Convention):
1. The Montreal Convention provides that Regional Economic Integration Organisations constituted by
sovereign States of a given region, which have competence in respect of certain matters governed by this
Convention, may become parties to it.
2. The current Member States of the European Community are the Kingdom of Belgium, the Kingdom
of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French
Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the
Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of
Sweden and the United Kingdom of Great Britain and Northern Ireland.
3. This declaration is not applicable to the territories of the Member States in which the Treaty
establishing the European Community does not apply and is without prejudice to such acts or positions as
may be adopted under the Convention by the Member States concerned on behalf of and in the interests
of those territories.
4. In respect of matters covered by the Convention, the Member States of the European Community
have transferred competence to the Community for liability for damage sustained in case of death or
injury of passenger. The Member States have also transferred competence for liability for damage caused
by delay and in the case of destruction, loss, damage or delay in the carriage of baggage. This includes
requirements on passenger information and a minimum insurance requirement. Hence, in this field, it is
for the Community to adopt the relevant rules and regulations (which the Member States enforce) and
within its competence to enter into external undertakings with third States or competent organisations*.
5. The exercise of competence which the Member States have transferred to the Community pursuant to
the EC Treaty is, by its nature, liable to continuous development. In the framework of the Treaty, the
competent institutions may take decisions which determine the extent of the competence of the European
Community. The European Community therefore reserves the right to amend the present declaration
accordingly, without this constituting a prerequisite for the exercise of its competence with regard to
matters governed by the Montreal Convention.
______________
*Sources:
1) Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of
accidents, Official Journal of the European Union, L 285, 17.10.1997, p. 1;
2) Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002
amending Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents, Official
Journal of the European Union, L 140, 30.05.2002, p. 2.”
(10)
The instrument of accession by Austria contains the following declaration:
96
“The Republic of Austria declares according to Article 57 of the Convention for the Unification of
Certain Rules for International Carriage by Air of 28 May 1999 that this Convention shall not apply to:
a) international carriage by air performed and operated directly by the Republic of Austria for noncommercial purposes in respect to its functions and duties as a sovereign State;
b) the carriage of persons, cargo and baggage for the military authorities on aircraft registered in or
leased by the Republic of Austria, the whole capacity of which has been reserved on behalf of such
authorities.”
(11) The instrument of ratification by Denmark contains a declaration that until later decision, the
Convention will not be applied to the Faroe Islands.
(12) The instrument of ratification by Germany was accompanied by the following declaration:
“In accordance with Article 57 of the Convention of for the Unification of Certain Rules for International
Carriage by Air of 28 May 1999, the Federal Republic of Germany declares that the Convention shall not
apply to international carriage by air performed and operated directly by the Federal Republic of
Germany for non-commercial purposes in respect to its functions and duties as a sovereign State or to the
carriage of persons, cargo and baggage for the military authorities of the Federal Republic of Germany on
aircraft registered in or leased by the Federal Republic of Germany, the whole capacity of which has been
reserved by or on behalf of such authorities.”
(13) The instrument of ratification by Spain contains the following declarations:
“The Kingdom of Spain, Member State of the European Community, declares that in accordance with the
Treaty establishing the European Community, the Community has competence to take actions in certain
matters governed by the Convention.”
“In accordance with the provisions of Article 57, the Convention shall not apply to:
a) international carriage by air performed and operated directly by Spain for non-commercial purposes
in respect to its functions and duties as a sovereign State;
b) the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or
leased by Spain, the whole capacity of which has been reserved by or on behalf of such authorities.”
(14) By a Note dated 29 April 2004 from the Ministry of Foreign Affairs, the Netherlands transmitted to
ICAO the following declaration: “The Kingdom of the Netherlands, Member State of the European
Community, declares that in accordance with the Treaty establishing the European Community, the
Community has competence to take actions in certain matters governed by the Convention”.
(15) By a Note dated 15 July 2004 from the Minister of Foreign Affairs, Belgium transmitted to ICAO
the following declaration in accordance with Article 57:
“the Convention does not apply to:
a) international carriage by air performed and operated directly by Belgium for non-commercial
purposes in respect to its functions and duties as a sovereign State;
b) the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or
leased by Belgium, the whole capacity of which has been reserved by or on behalf of such authorities.”
(16) In its instrument of accession, Qatar confirmed the application of the following declaration in
accordance with Article 57:
“the Convention does not apply to:
a) international carriage by air performed and operated directly by that State Party for non-commercial
purposes in respect to its functions and duties as a sovereign State, and/or
b) the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or
leased by that State Party, the whole capacity of which has been reserved by or on behalf of such
authorities.”
(17) The instrument of ratification by Lithuania contains the following declarations:
97
“... in accordance with Article 57 ..., the Seimas of the Republic of Lithuania declares that this
Convention shall not apply to international carriage by air performed and operated directly by the
Republic of Lithuania for non-commercial purposes in respect to its functions and duties as a sovereign
State; and also shall not apply to the carriage of persons, cargo and baggage for its military authorities on
aircraft registered in or leased by the Republic of Lithuania, the whole capacity of which has been
reserved by or on behalf of such authorities.”
“... in accordance with the Treaty establishing the European Community, the Seimas of the Republic of
Lithuania declares that the Community has competence to take actions in certain matters governed by the
Convention.”
98
Annex 6 Examples for low, medium and high compensation awards by
German courts
99
100
101
Bibliography
American Judicature
Society:
Bundesstelle für Seeunfalluntersuchung
(BSU):
Comite Maritime
International:
Juries In-depth: Right to a jury trial, 01.04.2005
http://www.ajs.org/jc/juries/jc_right_overwiew.asp
Jahresstatistik 2002-2003, 21.03.2005, 29.01.2005
http://www.bsu-bund.de/pdf/statistik/statistik_02-03.pdf
Status of Ratifications of Maritime Conventions,01.04.2005
http://www.comitemaritime.org/ratific/imo/imo08.html
Encyclopedia:
Damages, 23.02.2005
http://encyclopedia.laborlawtalk.com/Damages
Encyclopedia:
Damages, 23.02.2005
http://encyclopedia.laborlawtalk.com/Punitive_damages
Encyclopedia:
Damages, 23.02.2005
http://encyclopedia.laborlawtalk.com/Negligence
Englishweb:
Einblick Rechtssystem USA, 01.04.2005
http://www.englishweb.de/business/usarechtssystem.php
Expert Law:
Maritime Injury Law and Jones Act, 21.02-2005
http://www.expertlaw.com/library/workers_comp/
jones_act.html
Free Advice:
Wrongful death, 27.01.2005
http://www.accident-law.freeadvice.com/wrongful_death
Gold, Edgar:
Gard Handbook on P&I Insurance, 5th Edition,
Royal Corporate Print, London 2002
Hacks, Ring, Böhm:
Schmerzensgeld Beträge, 23. Auflage,
Deutscher Anwalt Verlag, Bonn 2005
Hippel, Walter:
Das US-Amerikanische Recht und seine missverständliche
Darstellung in der deutschen Presse-Dichtung und Wahrheit
04.03.2005
www.alumbi-erlangen.de/Vortrag-Hippel.pdf
Lipcon, Margulies &
Alsina, P. A.:
The $25,8 million dollar man – A case without precedent
27.01.2005
http://www.lipcon.com/news_article24.shtml
102
Lipcon, Margulies &
Alsina, P. A.:
Marine Accident
Investigation Branch:
Montreal Convention:
North of England
P&I Club:
North of England
P&I Club:
North of England
P&I Club:
Ogletree & Abbot
Law Firm:
Seafarers Safety,
Rehabilitation and
Compensation
Authority:
See-Berufsgenossenschaft:
Seaman’s family awarded $ 6million
27.01.205
http://www.lipcon.com/news_article5.shtml
Annual Report 2003, 29.01.2005
http.//www.maib.gov.uk/publications/annual_reports/
annual_report_2003.cfm
List of Signatories, 01.04.2005
http://www.icao.int/icao/en/leb/mtl99.htm
Signals Special Number 5 August 2000
24.03.2005
http://195.173.17.24/risk/publications/
newsletter/specials/5/5.php
North of England P&I Club Rules 2004/2005,
29.11.2004
http://www.nepia.com/news/rules.php
The Jones Act explained, 30.03.2005
http://www.nepia.com/risk/publications/newsletters/archive/
41/signals41.php
1800 Jones Act, 02.12.2004
http://www.1800jonesact.com/1917-jones-act/
default.asp
Annual Report 2003-2004, 29.01.2005
http://www.seacare.gov.au/annual-report-2004/
seacare-2004-annualreport.pdf
Merkblatt Einflaggung und Seediensttauglichkeit, 27.03.2005
www.seekasse.de/arbeitgeber/downloads/
Merkblatt_17_03_05.pdf
UK P&I Club:
Analysis of major claims report 1992, 29.01.2005
http://www.ukpandi.com/ukpandi/rescource.sf/Files/
AMC1992/$File/AMC1992.pdf
Uk P&I Club:
LP News Issue 6 November 1995, 21.03.2005
www.ukpandi.com/ukpandi/infopool.nsf/HTML/LPNews6
103
Uk P&I Club:
P&I Cover, 21.03.2005
www.ukpandi.com/ukpandi/infopool.nsf/HTML/
Cover#personal
Uk P&I Club:
General Introduction to the UK P&I Club, 28.03.2005
www.ukpandi.com/ukpandi/infopool.nsf/HTML/
About_IntroToUKPandI
Uk P&I Club:
What is a Mutual or Club?, 28.03.2005
www.ukpandi.com/ukpandi/infopool.nsf/HTML/
About_WhatIsAMutual
Uk P&I Club:
History of the P&I Clubs, 28.03.2005
www.ukpandi.com/ukpandi/infopool.nsf/HTML/
About_ClubHistory
Uk P&I Club:
International Group of P&I Clubs, 28.03.2005
www.ukpandi.com/ukpandi/infopool.nsf/HTML/
About_About_IG
Uk P&I Club
Crew Claims, The Costs and Risks Covered, 11.03.2005
Handout from Mr. Macke, Pandi Services, Hamburg
US Department of
Labour:
U.S. Department
of State:
Willis Law Firm:
Longshore and Harbor Worker’s compensation
03.04.2005
http://www.dol.gov/asp/programms/guide/
longshor.htm
Players in the judical process, 03.04.2005
http://usinfo.state.gov/journals/itdhr/0999/ijde/gorin.htm
Jones Act Injury, Death on the High Seas Act (DOHSA)
under Maritime Law, 03.04.2005
http://www.jonesact.com/dohsa/Default.htm
104
Contracts, Laws, Acts, Conventions
Athens Convention relating to the Carriage of Passengers and their Luggage by Sea,
1974
Convention for the unification of certain rules for international carriage by air,(Montreal
Convention), 4th November 2003
International Transport Worker’s Federation Contract, 1st January 1998
Standard Terms And Conditions Governing The Employment Of Filipino Seafarers OnBoard Ocean Going Vessels (POEA contract), 25th June, 2000
List of dialog partners
Mrs. Hertwig, Transport Claims Handling Services GmbH, Hamburg
Mr. Kühl, Pandi Services, Bremen
Mr. Macke, Pandi Services, Hamburg
105
Eidesstattliche Erklärung
Ich, Anke Wiedau erkläre an Eides Statt, dass ich die Diplomarbeit mit dem Titel
Personal injury claims related to seafaring
-with special emphasis on German and US jurisdictionsselbständig und ohne fremde Hilfe verfasst, andere als die angegebenen
Quellen und Hilfsmittel nicht benutzt und alle den benutzten Quellen wörtlich
oder sinngemäß entnommenen Stellen als solche kenntlich gemacht habe.
Bremen, 08.04.2005