Jones Act Attorney Straight Talk is a series of articles where we provide you an insiders view of Jones Act Law by a Jones Act Attorney. We lift up the hood, so to speak, to let you see how Jones Act injury cases really work. In other words we don’t tell you what you want to hear. We tell you what you need to hear. Straight old fashioned unvarnished, unsweetened truth. In the past 20-30 years, courts have not allowed Seaman to obtain punitive damages. The 2009 United States Supreme Court case, Atlantic Sounding which held punitive damages were available based upon failure to provide maintenance and cure – – has altered maritime law. Here we discuss a recent federal district court which upheld punitive damages under unseaworthiness. Seaman was employed as a mate on the towboat. Seaman sustained injuries to his left foot when it came in contact with a deckfitting on a barge that the towboat was preparing to switch. Seaman filed a claim alleging the Vessel Owner/ Employer was negligent, failed to provide maintenance and cure, and operated an unseaworthy vessel. Seaman sought punitive damages on all claims.
Punitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in reprehensible conduct. A claim for maintenance and cure concerns the vessel owner’s obligation to provide food, lodging, and medical services to a seaman injured while serving the ship. Unseaworthiness is a form of strict liability that requires the owner of a vessel to ensure that a vessel and its appurtenant equipment and appliances are reasonably fit for her intended use. Under these facts a recent federal court held that punitive damages are available under general maritime law for unseaworthiness claims. The court reasoned unseaworthiness is a general maritime action that was well established before the passage of the Jones Act. In addition, punitive damages were well established as a remedy in general maritime law before the passage of the Jones Act. Neither the Jones Act nor any other federal statute has addressed or limited the availability of punitive damages for unseaworthiness claims. This article is not legal advice. I am simplistic in order to achieve clarity. Your case, situation or circumstances probably differ from those described in this Jones Act Attorney Straight Talk article. Whenever you go to court asking for money your credibility is always at issue. Always tell the truth. Bill Turley is a California Jones Act Attorney. He was awarded Super Lawyer, has the highest AVVO Rating and was elected President of the Consumer Attorneys. He has the most comprehensive Jones Act Attorney website.
He took her to Hotel Ellis Town and raped her against her wishes. After that, he threatened her of dire consequences saying that he had taken her photographs. This way he continued to keep relations with the prosecutrix. This complaint further states that she shifted to Ahmedabad but even after coming to Ahmedabad, he started sending letters with the threat to defame her. At that stage, she told her husband and in-laws. She went to Jyoti Sangh, a NGO and encouraged by their support, she lodged the complaint of continuous harassment on the part of the appellant. “The plaintiff Manishaben dictates that though the complaint is lodged against the defendant Bhadresh, he is not impoved till today. Our condition is becoming worst day by day. In these two days, Bhadresh is making horrible face reading while our access and is doing abusive and filthy behaviour. I have dictated the above statement in full sound state of mind and without any undue pressure. During preliminary inquiries, the Police recorded the statements of counsellors of Jyoti Sangh who confirmed that the prosecutrix had made the statement to them regarding alleged rape by the appellant.
Be that as it may, the FIR was registered only under Section 506(2) of IPC on 31.05.2001 bearing C.R. No.II. 3009/2001 and on that basis, charge was framed only under the aforesaid Section on 25.06.2001. Further for one reason or the other, the prosecution case even under the said charge did not make any substantial progress. On 07.12.2010, an application was moved by the prosecutrix for amending the charge by including the offence under Section 376 IPC as well on the basis of complaint dated 29.05.2001 and treating the same as FIR. Initially, the Metropolitan Magistrate did not agree with this request and passed an order to the effect that till the examination-in-chief of the prosecutrix was recorded, it was not justifiable to amend/alter the charge. However, in the revision petition filed against that order, the Sessions Court remanded the case for fresh consideration. After remand, the order dated 31.03.2012 was passed by the Metropolitan Magistrate directing further investigation underSection 173(8) of the Code implying thereby that the necessity of framing of such charge would depend upon the investigation carried out by the Police.
Without stating the details, it suffices to mention that the matter was taken by all the parties to the Sessions Court and then to the High Court. Thereafter, the prosecutrix even came up to this Court by way of SLP (Crl.) No.636/2013 against the order dated 23.10.2012 passed by the High Court which had upheld the order of the Magistrate who had already ordered further investigation. In view of the above direction, the petitioner does not wish to press this special leave petition any longer. It is dismissed as not pressed.” Thereafter, the Police completed the investigation and submitted the report. “This case file be kept pending and whenever we want, only then, you do contest this case again and it is the wish of both of them, this case is kept pending. It was also pointed out that between 2001 and 2010, the prosecutrix did not appear to give her statement. However, the statement of one Vandana Patva, counsel in the said NGO was recorded.
Mr. Dave referred to the cross-examination of the said witness wherein this witness had admitted that in the statement dated 31.05.2001 recorded by the Police, no fact regarding rape was stated. It was also not mentioned as to at which place and at what time, incident of rape had taken place. The learned senior counsel, thus, submitted that in these circumstances the learned Additional Session Judge rightly granted anticipatory bail. The prosecutrix appeared in person and argued her case. The prosecutrix was harrased by the appellant. First act of sexual intercourse was against her wishes and was clearly a rape. After committing this rape, the appellant threatened her and started blackmailing her. On that basis, he took undue advantage of the hapless condition of the prosecutrix in which she was placed and committed subsequent acts of intercourse against her wishes which were nothing but commission of offences under Section 376 of IPC.
Various letters were written by the appellant not only to the prosecutrix but to her other family members as well, which showed his continued harassment to the prosecutrix and her family members. The appellant was even having an evil eye on the prosecutrix’s daughter who was of growing age and wanted to blackmail the prosecutrix in this behalf as well. In order to harass the prosecutrix, the appellant even foisted false cases on the husband of the prosecutrix in order to pressurize the prosecutrix to withdraw the case in question. She also submitted that she had to come up to this Court to have the charge for offence underSection 376 of IPC framed against the appellant. Ms. Hemantika Wahi, learned counsel appearing for the State, supported the plea of the prosecutrix. The allegations of rape go back to the years 1997-1998. No doubt, in the statement dated 19.03.2001 given to NGO Jyoti Sangh by the prosecutrix, she had levelled the allegations of rape.
Equally, no doubt, she had repeated these allegations in her complaint to ACP on 29.05.2001 as well. However, for some curious reasons, the allegations of rape did not find mention in her statement recorded by the IO on 31.05.2001 on the basis of which FIR was registered. This possibility cannot be ruled out that the IO did not record the statement correctly and intentionally omitted to mention about the allegations of rape. Whether this, in fact, happened would be tested during trial. Before we proceed further, we would like to discuss the law relating to grant of anticipatory bail as has been developed through judicial interpretative process. ]. The Constitution Bench in this case emphasized that provision of anticipatory bail enshrined inSection 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution.
]. This case lays down an exhaustive commentary of Section 438 of the Code covering, in an erudite fashion, almost all the aspects and in the process relies upon the aforesaid Constitution Bench judgment in Gurbaksh Singh’s case. “1. Leave granted. This appeal involves issues of great public importance pertaining to the importance of individual’s personal liberty and the society’s interest. Society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary.
In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage. There is no justification for reading into Section 438 CrPC the limitations mentioned inSection 437 CrPC.
The plentitude of Section 438must be given its full play. There is no requirement that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail. It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.
Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The prosecutrix has moved an application in these proceedings for perusing new evidence on the basis of which she claims that the appellant has committed breach of conditions of anticipatory bail and regular bail. It is not necessary for us to go into the allegations made in this application. She would be at liberty to make such an application before the trial court for cancellation of bail. Before we part, in order to balance the equities, we are of the view that the trial in this case may be expeditiously conducted and the trial court should endeavour to complete the same within one year. As a result, we set aside the impugned judgment and restore the order dated 18.05.2013 of the learned Additional Sessions Judge granting anticipatory bail to the appellant on the conditions mentioned in the said order. Appeals are allowed in the aforesaid terms.
Imagine, heaven forbid, you’ve been injured in a car wreck in Texas. The driver who hit you was drunk. Let’s assume you’re a responsible employee of a company that provides medical insurance benefits through a plan you’re a participant in. Each pay period a small dent in your paycheck ensures you’ve got great medical coverage. You have a co-pay, but it’s low. Unfortunately, the car wreck necessitates a night in hospital. You suffered a minor concussion and they want to keep you under observation, perhaps run a CAT scan. You also suffered some significant bruising and maybe a muscle strain. X-rays and an MRI are recommended to be sure there’s nothing more significant going on, like a herniated vertebral disc, or a fractured vertebra. 35,000.00. You’re discharged, with instructions to follow up with a physical therapist. You then discover you’re going to have to miss some work to keep all your physical therapy appointments. You’ll have to cash in some sick time.
42,500.00, plus a week’s worth of sick days later, you’ve reached “maximum medical improvement”; in other words, after all the therapy, you’re as close to the way you were before the wreck as the therapist believes you’re going to get. Let’s assume you submitted an authorization to the drunk driver’s insurance company that allowed that insurer to obtain your medical bills and a record of the amount your employer’s health plan paid directly to the hospital and the physical therapist. Let’s also assume the medical insurer your employee health plan is underwritten by has negotiated deeply discounted contract rates with both of those providers. Those contract rates mean the providers were paid a little more than Medicare rates for their services, say 35 cents on the dollar. How much is your claim against the drunk driver worth? After all, that’s the value of the treatment you received, at least according to the hospital and the physical therapist, and that’s what they billed, isn’t it.
You write to the drunk driver’s insurer demanding they compensate you for the value of the treatment you received. 30,000.00 available under their insured’s policy aren’t they? The law in Texas today says the value of your medical treatment isn’t what the hospital and the therapist billed your medical insurer. 14,875.00.That’s all the other driver’s insurance company is prepared to pay to compensate you. After a lot of back and forth with an unsympathetic bodily injury adjuster, whose job is to deny claims entirely if possible, and at least delay claims payments, you capitulate and accept the adjuster’s offer. Well, you think, that sucks. 15,000.00 will help assuage the misery somewhat, right? A while back, not long after you finished your medical treatment, you got a letter from a company acting on behalf of your employee health plan’s insurance company, the big medical insurer. The letter said the medical insurer has a right of “subrogation.” In other words, a right to get back the amount it paid in benefits to your medical providers from any recovery you get from the drunk’s auto insurer.
14,875.00 you thought was yours? Turns out it goes straight back to your medical insurance company. What’s even worse is the drunk’s auto insurer knows all about it, and they cut their settlement check to the medical insurance company directly. You don’t see a dime. This is reality in Texas personal injury claims right now. This is all a Texas jury is permitted to hear about concerning the value of the victim’s medical treatment. Not the amount billed or charged, the amount that doctors and hospitals actually value their services at, but rather the amount paid by a medical insurance company. In fact, the loss remains entirely the insured’s; in premium dollars, in lost sick time, and in the intangible damages liability claims adjusters believe Texas juries won’t award; pain, suffering, and mental anguish. Indeed, juries in Texas are reluctant to award these “non-economic” categories of damages. Can A Lawyer Really Help?