Checklist · Maritime

Handling a Maritime Injury Claim from First Report to Maximum Medical Improvement: A Practical Checklist

46 U.S.C. § 30104

Type: Checklist
Jurisdiction: National
Date: 2024-12-10
Topic: Maritime

This checklist covers the four postures a maritime injury matter arrives in: representing an injured seaman, defending a vessel owner or employer, evaluating status where the answer determines which regime applies, and managing the running maintenance and cure obligation that accrues throughout the litigation. The status track works the two-part test across the entire employment record rather than the moment of injury. The seaman track builds the maintenance rate with documentation, tracks maximum medical improvement, and preserves the punitive claim that willful non-payment creates. The owner track is a sixty-day protocol, because the decisions that determine exposure are made administratively before any lawyer is involved. Each item names the authority and the document that establishes it.

Handling a Maritime Injury Claim from First Report to Maximum Medical Improvement: A Practical Checklist

Maritime > Seaman Status, Maintenance and Cure, and Vessel Negligence | Published 10 December 2024 - Updated 5 July 2026 | UpLaw - uplaw.us

How to use this checklist

Track A determines status, which decides which regime applies. Track B is the injured worker's side. Track C is the owner's and employer's side, organized around the first sixty days. Track D is litigation. Track E is death cases and limitation.

Run Track A first, always. The difference between a seaman and a harbor worker is the difference between full tort recovery with a jury and a compensation schedule.

Authorities: 46 U.S.C. § 30104, 46 U.S.C. § 30105, 46 U.S.C. § 30106 (Jones Act); 45 U.S.C. § 51, 45 U.S.C. § 53, 45 U.S.C. § 54, 45 U.S.C. § 56, 45 U.S.C. § 60 (incorporated provisions); 46 U.S.C. § 30101, 46 U.S.C. § 30103 (maritime torts); 46 U.S.C. § 30302, 46 U.S.C. § 30303, 46 U.S.C. § 30307 (death on the high seas); 46 U.S.C. § 10313 (wages), 46 U.S.C. § 11101 (accommodations); 46 U.S.C. § 30501, 46 U.S.C. § 30505, 46 U.S.C. § 30511 (limitation); 33 U.S.C. § 905 (harbor workers); 28 U.S.C. § 1333 (jurisdiction and savings clause); 46 C.F.R. Part 10, 46 C.F.R. Part 15, 20 C.F.R. Part 702.

Track A: Status

[ ] Obtain the worker's entire employment history, not just the assignment during which the injury occurred.
[ ] Apply Chandris, Inc. v. Latsis: do the duties contribute to the function of the vessel or the accomplishment of its mission?
[ ] Is the connection to a vessel in navigation substantial in duration? Compute the percentage of time across the employment; roughly thirty percent is the guideline, not a mechanical test.
[ ] Is the connection substantial in nature — regularly exposed to the perils of the sea?
[ ] Confirm status is assessed on the employment as a whole, not the activity at the moment of injury.
[ ] Confirm no requirement of aiding in navigation, per McDermott International, Inc. v. Wilander.
[ ] If a fleet is relied upon, confirm the vessels are under common ownership or control, per Harbor Tug & Barge Co. v. Papai. Hiring hall assignments across different owners cannot be aggregated.
[ ] Is the craft a vessel — used or capable of being used as a means of transportation on water, per Stewart v. Dutra Construction Co.?
[ ] Is it outside the vessel definition, per Lozman v. City of Riviera Beach — no self-propulsion, no rudder, no capacity to carry people or things over water?
[ ] Was the vessel in navigation, or withdrawn for major overhaul or under construction?
[ ] If not a seaman, apply the harbor workers' scheme at 33 U.S.C. § 905, with 20 C.F.R. Part 702 claims procedure, or state workers' compensation.
[ ] Assemble the status evidence: employment records, vessel logs, crew lists, work assignments, time allocation, and payroll characterizations.

Track B: Representing the injured worker

First contact

[ ] Obtain the accident report, vessel logs for the period, and the complete employment history.
[ ] Send a written preservation letter: logs, maintenance records, inspection reports, prior complaints about the same condition, photographs, video, and the equipment itself.
[ ] Identify the treating physician and obtain records directly.
[ ] Confirm the three-year limitation under 46 U.S.C. § 30106 and calendar it.

Maintenance and cure demand

[ ] Send a written demand immediately. This starts the clock on willfulness.
[ ] Confirm the seaman was in the service of the ship — including ashore on liberty, per Aguilar v. Standard Oil Co. of NJ and Warren v. United States.
[ ] Note that no fault, negligence, or unseaworthiness need be shown, and that doubts are resolved for the seaman per Vaughan v. Atkinson.
[ ] Document the maintenance rate with actual expenses: rent or mortgage, utilities, and food receipts. For an unrepresented seaman the rate is proved with documentation.
[ ] If represented, confirm whether a collective bargaining agreement sets the rate.
[ ] Demand cure: medical, surgical, hospital, nursing care, transportation, and prescriptions.
[ ] Demand unearned wages to the end of the voyage or contractual period, and separately assess the wage penalty at 46 U.S.C. § 10313.
[ ] Note the endpoint is maximum medical improvement, per Calmar Steamship Corp. v. Taylor and Farrell v. United States.

The punitive file

[ ] Log every payment: date, amount, period covered.
[ ] Log every communication about payment.
[ ] Record the basis for any termination — examination or paper review, by whom, on what date.
[ ] Record whether a release was ever requested as a condition of payment.
[ ] Obtain the treating physician's contrary opinion if maximum medical improvement is asserted.
[ ] Preserve the punitive claim under Atlantic Sounding Co. v. Townsend, and note that punitive damages are not available for unseaworthiness after The Dutra Group v. Batterton.

Pleading

[ ] Plead all three: maintenance and cure; Jones Act negligence under 46 U.S.C. § 30104; unseaworthiness.
[ ] Invoke the savings clause at 28 U.S.C. § 1333 to obtain a jury; admiralty proceedings are tried to the court.
[ ] Confirm venue under 45 U.S.C. § 56, incorporated through the Jones Act.
[ ] Identify the correct employer for the Jones Act claim — owner, operator, or manning agent, applying borrowed servant analysis.
[ ] Identify the correct owner for the unseaworthiness claim, which may be a different party and may include a bareboat charterer.
[ ] Confirm tort jurisdiction under Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. and Sisson v. Ruby.
[ ] Note that a state court hearing a savings-clause claim may apply its own forum non conveniens rules, per American Dredging Co. v. Miller.

Unseaworthiness file

[ ] Identify the specific condition, with photographs and maintenance history.
[ ] Obtain prior complaints about the same condition — the single most valuable document in these cases.
[ ] Compare manning to the certificate of inspection and the requirements at 46 C.F.R. Part 15.
[ ] Assess crew competence: training, certifications, prior incidents.
[ ] Confirm the theory is a defective condition per Mitchell v. Trawler Racer, Inc., not an isolated negligent act per Usner v. Luckenbach Overseas Corp..
[ ] Note that liability does not depend on notice or diligence, and that a transitory condition can suffice.

Jones Act file

[ ] Apply the causation standard: did negligence play any part, even the slightest, per CSX Transportation, Inc. v. McBride?
[ ] Identify any statutory or regulatory violation; under Kernan v. American Dredging Co. it supports liability without proof of negligence.
[ ] Confirm that a safety statute violation eliminates any comparative fault reduction under 45 U.S.C. § 53.
[ ] Confirm assumption of risk is abolished under 45 U.S.C. § 54.
[ ] For emotional injury, apply the zone of danger test of Consolidated Rail Corporation v. Gottshall.
[ ] Note that the same causation standard applies to the seaman's own negligence, per Norfolk Southern Railway Co. v. Sorrell.
[ ] Consider whistleblower protection under 45 U.S.C. § 60 if retaliation follows the report.

Damages

[ ] Maintenance, cure, unearned wages.
[ ] Consequential damages for aggravation caused by non-payment.
[ ] Attorney fees for callous refusal, per Vaughan v. Atkinson.
[ ] Punitive damages for willful refusal, subject to the ratio reasoning of Exxon Shipping Co. v. Baker.
[ ] Past and future lost earnings and earning capacity; medical expense; pain and suffering.
[ ] Account for set-offs: maintenance and cure paid credits against compensatory recovery for the same items.
[ ] Consider claims against equipment manufacturers, applying Air & Liquid Systems Corp. v. DeVries.

Track C: The owner's and employer's first sixty days

This period determines exposure more than anything that follows.

Days 1–3

[ ] Ensure medical care is provided immediately.
[ ] Complete an accident report stating facts, conditions, witnesses, and actions taken — not conclusions about fault.
[ ] Issue an evidence preservation instruction: logs, maintenance records, inspection reports, prior complaints, photographs, video, and the equipment itself. Preserve exculpatory evidence too.
[ ] Notify protection and indemnity underwriters; late notice arguments are common and avoidable.
[ ] Calendar limitation of liability under 46 U.S.C. § 30501 from written notice of a claim.

Days 1–14

[ ] Begin paying maintenance and cure. Doubts are resolved for the seaman; an unpaid arguable claim is punitive exposure.
[ ] Set the rate defensibly: the collective bargaining rate for represented seamen; documented actual expenses for unrepresented seamen. Do not apply an undocumented default figure.
[ ] Confirm cure covers medical, surgical, hospital, nursing, transportation, and prescriptions.
[ ] Compute unearned wages to the end of the voyage or contractual period.
[ ] Never condition payment on a release. This is the single fact most likely to establish willfulness.

Days 14–60

[ ] Assess status under Track A. If the harbor workers' scheme at 33 U.S.C. § 905 applies, exposure changes entirely.
[ ] Obtain treating physician records before making any medical determination.
[ ] If maximum medical improvement is asserted, base it on an examination, not a paper review, and document the physician, the basis, and the date.
[ ] Where the treating physician disagrees, resolve the conflict before terminating.
[ ] Investigate any concealment defense fully before asserting it: intentional concealment, materiality to hiring, and a causal link. All three, or do not raise it.
[ ] Document the investigation of the incident and the vessel's condition.
[ ] Review manning against the certificate of inspection and 46 C.F.R. Part 15, and documentation against 46 C.F.R. Part 10.

Ongoing

[ ] Reassess payment monthly and document each decision.
[ ] Maintain a payment ledger with dates, amounts, and periods.
[ ] Preserve all communications with the seaman about payment.
[ ] Track set-offs for the eventual damages accounting.
[ ] Assess comparative fault under 45 U.S.C. § 53, remembering that a safety statute violation eliminates the reduction.

Track D: Litigation

[ ] Confirm which theories are pleaded and their distinct elements.
[ ] Status discovery: employment records, vessel logs, crew lists, assignment records, and payroll characterizations across the entire employment.
[ ] Cure discovery: the payment ledger, internal communications about payment, medical reviews, and any release request.
[ ] Unseaworthiness discovery: maintenance records, inspection reports, prior complaints, manning documents, and crew qualifications.
[ ] Negligence discovery: safety policies, training records, work orders, and regulatory compliance.
[ ] Retain a vocational expert and a life care planner where future damages are substantial.
[ ] Retain a marine expert on vessel condition, manning, and industry practice.
[ ] Prepare the damages accounting, including set-offs for maintenance and cure paid.
[ ] Address the punitive damages ratio under Exxon Shipping Co. v. Baker if willful non-payment is in the case.
[ ] Confirm which defendants owe which duties — the Jones Act runs against the employer, unseaworthiness against the owner.

Track E: Death cases and limitation

Death

[ ] Determine the decedent's status — seaman, harbor worker, or non-seafarer.
[ ] Determine where the death occurred — high seas or territorial waters.
[ ] On the high seas: 46 U.S.C. § 30302, 46 U.S.C. § 30303, and 46 U.S.C. § 30307 supply the action and the recovery.
[ ] For a seaman under general maritime law: note that Miles v. Apex Marine Corp. excludes loss of society and lost future earnings.
[ ] For a harbor worker where no statute applies: Norfolk Shipbuilding & Drydock Corp. v. Garris recognizes a general maritime negligence action.
[ ] For a non-seafarer in territorial waters: Yamaha Motor Corp., USA v. Calhoun preserves state remedies, which are frequently broader.
[ ] Identify the proper beneficiaries and the representative.

Limitation of liability

[ ] Owner: calendar the filing period from written notice of a claim under 46 U.S.C. § 30501; it is short and runs from notice, not from suit.
[ ] Assess privity or knowledge under 46 U.S.C. § 30505 — for a corporate owner, knowledge of managing or supervisory personnel is generally imputed, and an unseaworthy condition the owner knew or should have known of defeats limitation.
[ ] Value the vessel and pending freight; deposit security under 46 U.S.C. § 30511.
[ ] Claimant: consider stipulating to the owner's right to litigate limitation and to the adequacy of the fund, to preserve a jury on liability and damages.
[ ] Confirm the effect of the concursus on other pending proceedings.

Regime comparison card

	Seaman	Harbor worker	Land-based
Governing test	Chandris, Inc. v. Latsis	status and situs, 33 U.S.C. § 905	neither
No-fault benefit	maintenance and cure	compensation schedule	state comp
Negligence claim	Jones Act, 46 U.S.C. § 30104	against the vessel, 33 U.S.C. § 905	third-party only
Unseaworthiness	yes	no	no
Causation	any part, even the slightest	ordinary	ordinary
Comparative fault	reduces, 45 U.S.C. § 53; no reduction if safety statute violated	varies	varies
Assumption of risk	abolished, 45 U.S.C. § 54	—	varies
Punitive damages	yes, willful failure to pay cure	no	varies
Jury	yes, savings clause 28 U.S.C. § 1333	no	yes
Limitation period	three years, 46 U.S.C. § 30106	statutory	state

Cure termination review

Before terminating maintenance and cure, confirm every box. Each unchecked box is a willfulness fact.

[ ] Was the determination based on an examination, not a paper review?
[ ] Who made it, and on what date?
[ ] Was the treating physician's opinion obtained first?
[ ] Does the treating physician agree that maximum medical improvement has been reached?
[ ] If not, has the conflict been resolved — or is termination proceeding over a documented disagreement?
[ ] Is the recommended further treatment curative or merely palliative?
[ ] Has the seaman been notified in writing, with the basis stated?
[ ] Has anyone requested a release in connection with payment? (If yes, stop.)
[ ] Is the file documented well enough that the decision can be explained to a jury three years from now?

Concealment defense elements

All three, or do not assert it.

Element	Evidence required	Present?
Intentional concealment or misrepresentation of a material medical fact	the pre-employment questionnaire or examination record
Materiality to the hiring decision	evidence the employer relied on medical disclosures and would not have hired, or would have hired on different terms
Causal link between the concealed condition and the present injury	medical opinion connecting them

Warning. Asserting this defense without all three elements is among the most reliable ways to convert a defensible termination into a punitive damages case under Atlantic Sounding Co. v. Townsend.

Evidence preservation list

[ ] Vessel logs — deck, engine, and official — for the period
[ ] Maintenance and repair records for the equipment and area involved
[ ] Inspection reports, including class and regulatory inspections
[ ] Prior complaints about the same condition
[ ] Work orders and job hazard analyses
[ ] Crew lists, certificates, and training records
[ ] Manning documents and the certificate of inspection
[ ] Photographs and video of the area, taken promptly
[ ] The equipment itself, preserved unaltered
[ ] Safety meeting minutes
[ ] Communications about the incident
[ ] Payroll and assignment records for the entire employment
[ ] Medical records and the payment ledger

Rule for both sides. The owner controls nearly all of this evidence, including the evidence that would exonerate it. Preserve everything; spoliation converts a defensible case into an indefensible one, and an owner that lost the maintenance records cannot prove the vessel was fit.

Handling a Maritime Injury Claim from First Report to Maximum Medical Improvement: A Practical Checklist

How to use this checklist

Track A: Status

Track B: Representing the injured worker

Track C: The owner's and employer's first sixty days

Track D: Litigation

Track E: Death cases and limitation

Regime comparison card

Cure termination review

Concealment defense elements

Evidence preservation list

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