Are commercial divers covered under Jones Act Law?

The Jones Act is the most widely recognized maritime law protecting the rights of injured seamen. The Jones Act makes an employer responsible for damages sustained by an injured worker as a result of the company’s negligence, the negligence of another employee, or the unseaworthiness of a vessel. Maritime workers who are protected by the Jones Act are eligible for financial compensation for medical expenses, pain and suffering, loss of wages, loss of earning capacity, and other damages.

Historically, the courts have recognized commercial divers as Jones Act seamen if they meet the following criteria.

1. The diver’s job duties contribute to the function or mission of a vessel in navigation.

Divers who dive from a dive vessel or a vessel that is provisioned and manned for the purpose of commercial diving fill this requirement. Divers who dive from land-based structures do not.

2. The diver must have a relationship or attachment to the vessel in navigation that is substantial in both “nature and duration.”

This criterion is easily met by divers who work solely for one company, but a freelance diver who works for various companies may have difficulty proving Jones Act seaman status.

The following questions can help to determine if your commercial diving work is covered and if you can file a Jones Act lawsuit:

• Are you employed by a commercial diving contractor?
• Do you contribute to the function or mission of a “vessel in navigation”?
• Do you dive from a vessel that is especially equipped for commercial diving?
• Do you feel that the company or employers you work for were negligent?
• Is the vessel you work on unseaworthy in any way?
• Were you well trained for the job? Was your tender well trained?
• Was your equipment well maintained?

A Jones Act diver must be able to prove that the company’s negligence contributed to his injury. He must show that the company failed to exercise ordinary care under the circumstances that led to the accident. Negligence may occur because the vessel is unseaworthy, equipment is not maintained, there is not enough safety equipment, the diver is assigned tasks for which he has inadequate training, or medical help is not provided when needed. For example, a diver who sustained a decompression injury may need to show that the company used a decompression table unsafely or used an unsafe decompression table. Or, he may have a claim if he showed signs of decompression sickness or air embolism and did not receive proper and immediate medical attention.

Divers who are not covered by the Jones Act may be covered under the Longshore and Harbor Workers Compensation Act (LHWCA). These workers cannot recover damages as in the Jones Act, but are limited to payments that are based on their average weekly salary.

A Commercial Diver’s Guide to Gas Embolism: A Serious Diving Injury

All commercial divers should be aware of potentially fatal condition known as gas embolism or air embolism. An air embolism occurs when gas bubbles enter the bloodstream and obstruct circulation.  Gas embolism is the second leading cause of death among divers after drowning.

A gas embolism typically occurs when a diver who has been breathing compressed air is not able to fully exhale as he or she ascends. If the airway is obstructed, the expanding air in the lungs causes the lungs to overinflate.  This can cause a rupture of the alveoli and force air to move into the arteries.  If the gas bubbles reach the brain, the diver will lose consciousness.

Gas embolism is not linked to diving depth and may occur in as little as 6 feet of water.

A diver may experience gas embolism if he or she holds his breath during ascent, but an air embolism can also result from any airway obstruction or congestion that keeps the diver from being able to fully exhale.   A diver should never dive with a cold, cough or any type of chest pain or congestion and should wait a week after all cold symptoms have passed before resuming diving.

The main symptom of gas embolism is immediate loss of consciousness. If a diver becomes unconscious, it should be assumed that the diver is experiencing gas embolism.

Signs and Symptoms of Air Embolism
(These usually appear IMMEDIATELY upon surfacing)

• Dizziness
• Visual Blurring
• Areas of abnormal sensation
• Bloody Froth from Mouth
• Paralysis or Weakness
• Convulsions
• Unconsciousness
• Pulmonary Arrest
• Cardiac Arrest

Any commercial diver who has been breathing compressed air and is unconscious, or loses consciousness within ten minutes after surfacing should be treated for an air embolism with hyperbaric oxygen treatment.  This treatment deflates the gas bubbles in the bloodstream and other areas of the body; the gases are dissolved into the blood and blood flow is restored.  If recompression treatment is not immediately available, the diver should be kept lying down and given oxygen.

Some of these symptoms also may be the same as someone suffering from decompression sickness; however, decompression sickness is unlikely at depths under 40 feet. When there is doubt, divers should be treated for air embolism.

Air embolisms can occur for many reasons.  In some cases, the diving company is responsible for the injury.  In other cases, the diving company may be liable for not properly treating the injury.

If you have been injured in a Louisiana or Texas diving accident, you may not be sure if you covered by maritime law. The maritime attorneys at The Young Firm can help you. We can determine which laws cover your injuries and how much compensation you are entitled to. Contact our office at 504-680-4100 to schedule a free consultation.