Building a Maritime, Aviation, or Railroad Injury Claim: A Practical Checklist

Tort > Maritime, Aviation, and Rail Injuries | Published 26 July 2025 - Updated 10 November 2025 | UpLaw - uplaw.us

How to Use This Checklist

Phases 1 through 3 run in the first week, and the first two often on the first day. Phases 4 through 7 depend on the classification. Phases 8 and 9 run through the case.

The doctrine is in maritime, aviation, and rail injuries. The narrative orientation is hurt where the ordinary rules do not apply. The forms are in the Jones Act and FELA injury claim toolkit.

Phase 1 — Classify

☐ Ask where the person was, what they were doing, and for whom. Not how the injury happened — that comes later.

☐ Test seaman status: did the duties contribute to a vessel's function or mission, and is there a connection to a vessel in navigation, or an identifiable fleet, substantial in both duration and nature?

☐ Check whether the craft is a vessel in navigation — practically capable of maritime transportation, not permanently withdrawn.

☐ Estimate the duration element against the roughly thirty percent benchmark, using timesheets and vessel movement logs rather than the client's estimate.

☐ If not a seaman, test longshore coverage: engaged in maritime employment (status) and injured on navigable waters or an adjoining area customarily used for vessel work (situs), under 33 U.S.C. § 902.

☐ If a railroad employee of a common carrier, the claim is under 45 U.S.C. § 51 and state workers' compensation does not apply.

☐ If the incident was on navigable waters with a substantial relationship to maritime activity, general maritime law may supply the standards even for a non-worker.

☐ If death occurred on the high seas beyond the statutory limit, 46 U.S.C. § 30302 applies and recovery is limited to pecuniary loss under 46 U.S.C. § 30303.

☐ If aviation is involved, run the preemption analysis under 49 U.S.C. § 40101 and 49 U.S.C. § 41713 before anything else, and determine whether the flight was international.

☐ Identify every entity: employer, vessel owner, operator, charterer, terminal, contractor, manufacturer. They are frequently different, and the claims run against different ones.

☐ Do not let the client give a recorded statement until this phase is complete.

Phase 2 — Calendar the Deadlines

☐ Maritime tort: three years under 46 U.S.C. § 30106.

☐ Railroad: three years under 45 U.S.C. § 56, which also bars removal from state court.

☐ Longshore: short notice and filing periods under the compensation scheme at 33 U.S.C. § 901 and following; confirm both.

☐ Passenger ticket: notice and limitations periods stated in the contract, frequently far shorter than any statute. Read the ticket first.

☐ International carriage: the treaty's two-year period, which operates as a condition rather than an ordinary limitations period.

☐ Vessel owner's limitation window: six months from written notice of a claim under 46 U.S.C. § 30511. This runs against the owner; diary it from the date of your demand letter, because it determines whether a limitation action is still available to them.

☐ Occupational and cumulative trauma claims: apply the discovery rule and document when the client first knew of the condition and its work connection.

☐ Wrongful death and survival deadlines under the applicable regime; see bringing a wrongful death or survival action.

☐ Set reminders well before each date, and re-run the list whenever the classification changes.

Phase 3 — Preserve

☐ Send a preservation letter on day one, naming the specific equipment, location, and record categories, and demanding that the item be held in its post-incident condition.

☐ Demand electronic data before it overwrites: voyage data recorders, engine monitoring systems, locomotive event recorders, flight data, dispatch and radio logs, and position data. Cycles are measured in days or weeks.

☐ Demand operational records: logs, crew lists, manifests, work assignments, and watch schedules.

☐ Demand maintenance records: work orders, inspection reports, deferred repairs, and survey findings for the preceding years.

☐ Demand prior incident records for the same vessel, location, equipment, or crew member — central to notice and to unseaworthiness.

☐ Demand personnel and training records for those involved.

☐ Photograph everything, including the equipment, the location, and the client's boots, gloves, and gear.

☐ Inspect the equipment before it is repaired, with an expert if the condition is technical.

☐ Request regulatory records — casualty reports, inspection findings, and safety notifications — which frequently arrive faster than discovery.

☐ Interview coworkers early, before transfers and before the employer's investigation shapes accounts.

☐ Preserve the client's own records: report of injury, medical intake, text messages, and photographs taken at the scene.

☐ Follow general preservation practice; see issuing a litigation hold and preserving ESI.

Phase 4 — The Seaman's Case

☐ Demand maintenance and cure in writing immediately, with medical documentation. It is owed regardless of fault, from the date of injury or illness in the service of the ship.

☐ Document every refusal, underpayment, and delay, with dates. Unreasonable failure supports compensatory damages; willful and arbitrary refusal supports punitive damages and fees.

☐ Evaluate the maintenance rate. A contractual rate fixed decades ago may not control; document the actual cost of food and lodging ashore.

☐ Plead the Jones Act negligence claim under 46 U.S.C. § 30104, against the employer, and remember that causation requires only that negligence played any part, however slight.

☐ Plead unseaworthiness against the vessel owner — a separate claim, on a near-strict standard, and frequently against a different entity.

☐ Identify unseaworthiness theories: defective equipment, inadequate or untrained crew, unsafe method of work, insufficient manning, and improper appurtenances.

☐ Confirm the owner's identity, including any owner pro hac vice, charterer, or manager.

☐ Anticipate the status motion. Build the record on duration and nature now, not in response to the motion.

☐ Address comparative fault in the damages model rather than leaving it to the defense.

☐ Confirm damages availability — pain and suffering yes; loss of society and punitive damages restricted in most configurations except for maintenance and cure refusals.

☐ See handling a Jones Act seaman's injury claim for the seaman-specific sequence.

Phase 5 — The Longshore Case

☐ File the compensation claim within the statutory notice and filing periods; benefits are payable without fault under 33 U.S.C. § 904.

☐ Confirm the benefit calculation under 33 U.S.C. § 908 — average weekly wage, disability category, and any scheduled loss.

☐ Understand the exclusive remedy against the employer under 33 U.S.C. § 905, and that pain and suffering is unavailable in the compensation claim.

☐ Evaluate the vessel negligence claim preserved by the same provision, against the vessel in its capacity as owner, on the turnover, active control, and intervention duties.

☐ Identify whether the employer is also the vessel owner, which limits the vessel claim.

☐ Evaluate third-party claims — equipment manufacturers, terminal operators, other contractors — and see preserving evidence and pursuing a product liability claim.

☐ Address the employer's lien under 33 U.S.C. § 933 before settling any third-party claim, and confirm any approval requirement.

☐ Preserve the status argument if seaman status is arguable; the two regimes are mutually exclusive and the difference in value is large.

Phase 6 — The Railroad Case

☐ Plead under 45 U.S.C. § 51 and rely on the "in whole or in part" causation standard.

☐ Identify the negligence theory: unsafe place to work, defective equipment, inadequate assistance, insufficient training, or unreasonable work rules.

☐ Search for a safety statute violation, including the locomotive inspection requirements at 49 U.S.C. § 20701. A violation supports liability without negligence and eliminates the comparative fault reduction under 45 U.S.C. § 53.

☐ Confirm assumption of risk is off the table under 45 U.S.C. § 54.

☐ Scrutinize any release or benefit plan against 45 U.S.C. § 55, which voids devices exempting the carrier from liability while allowing a set-off for the carrier's contributions.

☐ File in state court where advantageous; 45 U.S.C. § 56 preserves concurrent jurisdiction and bars removal.

☐ Run the preemption analysis under 49 U.S.C. § 20106 in any crossing case, including the savings provision for failure to comply with a federal standard or the carrier's own plan.

☐ Preserve the event recorder data and the component itself before the equipment returns to service.

☐ For occupational claims, document first knowledge of the condition and its work connection for the discovery rule.

Phase 7 — Aviation and Passenger Claims

☐ Determine domestic or international carriage before anything else.

☐ For international carriage, apply the treaty as the exclusive remedy, confirm the two-year period, confirm the accident definition, and identify a permissible forum.

☐ For domestic aviation, analyze field preemption of the standard of care under 49 U.S.C. § 40101 and economic preemption under 49 U.S.C. § 41713.

☐ Check owner and lessor limitation under 49 U.S.C. § 44112 where the defendant was not in possession or control.

☐ For manufacturer claims, check the federal statute of repose and its exceptions.

☐ For cruise and ferry passengers, read the ticket first: notice period, limitations period, and forum selection.

☐ Assess the carrier's standard of care and whether notice of the condition is required.

☐ For recreational boating, determine whether general maritime law applies through the locality and connection tests, and anticipate limitation of liability under 46 U.S.C. § 30505.

Phase 8 — Forum and the Limitation Response

☐ Decide the forum before drafting the complaint, because the pleading choices follow from it.

☐ For railroad cases, consider state court; removal is barred by 45 U.S.C. § 56.

☐ For Jones Act cases brought at law in state court, anticipate a removal attempt and be ready to establish that the count was properly pleaded.

☐ Decide whether to designate the claim as an admiralty claim, understanding that an admiralty designation means trial to the court. The saving-to-suitors clause of 28 U.S.C. § 1333 is what preserves the alternative.

☐ Anticipate a limitation action whenever a vessel owner is a defendant.

☐ On receiving a limitation petition, check timeliness first: was it filed within six months of written notice under 46 U.S.C. § 30511?

☐ Attack privity or knowledge under 46 U.S.C. § 30505, through maintenance records, prior complaints, inspection findings, and management communications identifying who knew what.

☐ Identify the managing agent whose knowledge is attributable to a corporate owner.

☐ Negotiate a stipulation protocol — single claimant or all claimants together — preserving the district court's exclusive jurisdiction over limitation in exchange for litigating liability and damages elsewhere, with a jury.

☐ File a timely claim in the limitation proceeding regardless, to avoid default.

☐ Value the limitation fund independently; a post-casualty vessel appraisal is frequently contestable.

Phase 9 — Damages and Settlement

☐ Build the damages model to the regime. Pain and suffering is available to seamen and railroad employees, unavailable in compensation claims, and unavailable under the high seas death statute.

☐ Confirm punitive damages availability, which is restricted except for willful failure to pay maintenance and cure.

☐ Credit comparative fault in the model, and confirm whether a safety statute violation eliminates the reduction.

☐ Account for set-offs — advances, maintenance paid, and carrier contributions permitted by 45 U.S.C. § 55.

☐ Address the compensation lien under 33 U.S.C. § 933 or any employer subrogation interest before distribution.

☐ Retain the right experts: vocational, economic, marine engineering or railroad operations, and a life care planner where future needs are substantial. See expert witnesses and scientific evidence.

☐ Document the damages as the case develops; see documenting and proving damages in a civil case and damages and remedies.

☐ Resolve all liens before distribution; see negotiating a settlement and resolving liens before distribution.

☐ Confirm any required approval for a seaman's release, which courts scrutinize more closely than ordinary settlements.

Red Flags

⚠ A client who works aboard a vessel and has been told to file a state workers' compensation claim. ⚠ A recorded statement given before the status analysis. ⚠ A demand letter sent without diarying the vessel owner's six-month limitation window. ⚠ A cruise or ferry injury where nobody has read the ticket. ⚠ Equipment repaired or returned to service before inspection. ⚠ An event recorder or voyage data recorder not demanded within days. ⚠ A crossing case evaluated without the preemption analysis. ⚠ An aviation claim pleaded on a state standard of care. ⚠ A third-party settlement negotiated without addressing the compensation lien. ⚠ A release signed for an "advance."

Common Mistakes

1. Misclassifying the worker and litigating the wrong case.
2. Failing to plead unseaworthiness alongside the Jones Act claim.
3. Never demanding maintenance and cure in writing.
4. Overlooking a safety statute violation that eliminates comparative fault.
5. Missing the passenger ticket's shortened deadlines.
6. Failing to preserve electronic data before it overwrites.
7. Being surprised by a limitation petition and losing the jury.
8. Filing an aviation claim without a preemption analysis.
9. Settling a third-party claim over an unresolved compensation lien.
10. Allowing removal of a case that was not removable.

Related Documents

• Maritime, aviation, and rail injuries: a comprehensive guide to the Jones Act, FELA, and preemption
• Hurt where the ordinary rules do not apply: how maritime and rail injury claims work
• The Jones Act and FELA injury claim toolkit
• Handling a Jones Act seaman's injury claim: a practical checklist
• Tort law: a comprehensive guide
• Workers' compensation: a comprehensive guide
• Handling a workplace injury and workers' compensation claim: a practical checklist
• Evaluating a personal injury claim: a practical checklist
• Preserving evidence and pursuing a product liability claim: a practical checklist
• Bringing a wrongful death or survival action: a practical checklist
• Damages and remedies: a comprehensive guide
• Documenting and proving damages in a civil case: a practical checklist
• Issuing a litigation hold and preserving ESI: a practical checklist
• Negotiating a settlement and resolving liens before distribution: a practical checklist## The First-Call Worksheet

Client: ______ Incident date: ______ Call date: ______ Days elapsed: ______

1. Where was the client? ☐ aboard a vessel under way ☐ aboard a moored vessel ☐ on a pier, wharf, or terminal ☐ in a shipyard ☐ on railroad property ☐ aboard an aircraft ☐ on an airport ramp ☐ other ______

2. What were they doing, and for whom? Employer: ______ Job title: ______ Actual duties: ______

3. Time allocation. Percentage of working time in the service of a vessel: ______ Source: ______

4. Was the vessel in navigation? Movements in the last 12 months: ______

5. Preliminary classification: ☐ seaman ☐ longshore/harbor worker ☐ railroad employee ☐ passenger ☐ recreational ☐ bystander ☐ ordinary employee ☐ unresolved

6. Entities: employer ______ vessel owner ______ operator ______ charterer ______ terminal ______ contractor ______ manufacturer ______

7. Deadlines identified: ______ Calendared? ☐

8. Vessel owner limitation window — date of first written notice: ______ six months expires: ______

9. Preservation letter sent? ☐ Date: ______

10. Has the client given a recorded statement? ☐ yes ☐ no — If yes, obtain a copy immediately.

11. Has the client signed anything? ☐ yes ☐ no — If yes, obtain it before doing anything else.

12. Maintenance and cure demanded (seamen only)? ☐ Date: ______

Note. Items 9 through 12 are the ones that expire. Complete them in the first forty-eight hours regardless of how much remains unresolved in items 1 through 6.

Worked Example: The First Week

A deckhand on a harbor tug calls on day four with a shoulder injury from a parting line. He has been told to file for state workers' compensation and has already given a recorded statement.

Day four, hour one. Classification: he is aboard a tug under way most of the workweek, his duties plainly serve the vessel's mission, and the connection is substantial in both duration and nature. He is a seaman. State compensation does not apply.

Hour two. The recorded statement is requested in writing. Maintenance and cure is demanded in writing the same afternoon, with the emergency department record attached, and the demand notes that the obligation is owed regardless of fault from the date of injury.

Day five. Preservation letter goes out naming the line, the winch, the deck surface, the vessel's logs, the engine monitoring data, prior incident reports involving parted lines on that vessel, maintenance records for the winch and line, and crew training records. The regulator's casualty report is requested separately.

Day six. Entity structure researched: the tug is owned by one company, operated by a second, and the deckhand is employed by a third — which means the Jones Act claim runs against the employer, the unseaworthiness claim against the owner, and the maintenance and cure obligation against the owner or the employer depending on the arrangement. All three are named.

Day seven. The limitation window is diaried: the demand letter dated day four started the six months running against the owner.

Week three. The maintenance rate offered is a contractual figure set in an old agreement; counsel documents actual food and lodging costs and demands the difference, preserving the claim for damages from underpayment.

Month two. The maintenance records show two prior parted-line incidents on the same winch and a deferred repair — the unseaworthiness case, and the privity evidence that will defeat any limitation petition.

Everything that mattered in that case was done in the first week, and none of it required knowing how the accident happened.

Final Reminders

☐ Classification precedes everything. Where the person was, what they were doing, and for whom.

☐ The deadlines are distinctive and several run against parties other than your client.

☐ Evidence in these cases moves within days. The preservation letter goes out before the medical records are ordered.

☐ Plead every available remedy. A seaman has three, and they run against different defendants on different standards.

☐ Demand maintenance and cure in writing on the first day, and document every refusal.

☐ Look for a safety statute violation in every railroad case; it removes both the negligence element and the comparative fault reduction.

☐ Read the ticket in every passenger case, before anything else.

☐ Anticipate the limitation petition, and diary the six months from your own demand letter.

☐ Decide the forum before drafting, because removal, jury rights, and the admiralty designation all follow from it.

☐ Resolve every lien before distribution.

☐ And keep the first-call worksheet with the file. Six months later, when a status motion or a limitation petition arrives, the answers recorded on day four are the record that decides it — and reconstructing them from memory is exactly what opposing counsel will be counting on.

Fill it out on the first call, every time, even when the classification looks obvious.

The cases where it looked obvious are the ones that turn out to be contested.