Maritime Injury Law Blog

The Fifth Circuit Court of Appeals recently ruled a seaman may bring a Jones Act case against his or her employer after the three year statute of limitations if the severity and source of the seaman’s injury or illness were not known until well after the action leading to the illness. In this case, Plaintiff Herbert Pretus sued his employer Diamond Offshore Drilling, Inc. after being diagnosed with hypersensitivity pneumonitis and fibrosis of the lungs. The illness arose after Pretus was assigned to clean a rig that was allegedly “wet and moldy” in 1999. Pretus began complaining of “cold-like symptoms,” including a cough, fever, aches, congestion and chest tightness shortly after cleaning the rig. Pretus was given antibiotics and antihistamines and his condition slowly improved as he finished cleaning the rig and left for home. After a few years, Pretus’ symptoms worsened to the point where he had shortness of breath and coughing. Diamond sent Pretus to Dr. James Patterson for an independent examination in March, 2005, where Dr. Patterson diagnosed Pretus with hypersensitivity pneumonitis. Pretus subsequently filed suit against Diamond in September, 2006 under the Jones Act and General Maritime Law.
The Fifth Circuit Court of Appeals ruled Pretus’ three year statute of limitations did not begin until the examination by and diagnosis from Dr. Patterson. The general issue in the case is when Pretus should have discovered his illness, as therefore his cause of action, so as to trigger the running of the three year statute of limitations under the Jones Act. Under the Jones Act, the cause of action accrues when “a plaintiff has had a reasonable opportunity to discover the injury, its cause, and the link between the two.” Diamond cited numerous cases where an unknowingly ill plaintiff was unable to sue the employer because the three year period had passed. Diamond asserted that these cases set the precedent and Pretus’ statute of limitations should not be extended.
The Court focused on three issues to decide Pretus’ claim: first, the severity of the event and the initial symptoms; second, the plaintiff’s correlation of his ultimate injury with the event; and third, plaintiff’s reasonable reliance on the opinions of medical experts. The Court found that Pretus’ description of his initial symptoms as “cold-like,” along with the positive reaction to antibiotics and antihistamines, led Pretus to believe his illness was nothing similar to the severity of the cases that Diamond cited. This discredits the claim that Pretus should have known about the severity of his illness. Upon assessing the second issue, the Court emphasized that Pretus was not suing “based on those initial symptoms,” another sharp distinction between the cases Diamond cited. The Court further denied the existence of a traumatic event and the severity of Pretus’ symptoms prior to his shortness of breath in 2004. The third issue of reliance on medical experts further distinguishes Pretus from the other cases Diamond cited. Pretus diligently sought treatment for his medical problems when the initial symptoms presented themselves in 1999 before successfully receiving treatment. It was only after such treatment was ineffective in 2004 that Pretus sought further medical treatment. After extensive testing, including high resolution CT scans, the physicians were able to properly diagnose Pretus’ illness as “chronic interstitial lung inflammation, permanent fibrosis (scarring) of his long tissue and hypersensitivity pneumonitis.” Dr. Patterson explained that the condition is extremely difficult to diagnose and is commonly misdiagnosed in its early stages. These factors led the Court to rule that the cause of action occurred in 2004 when Pretus received his diagnosis, well within the three year statute of limitations under the Jones Act. Having satisfied all three issues, Pretus was awarded a trial where he brought his claim against Diamond Offshore Drilling, Inc.
Seamen injured or ill while at sea must file suit against their employer within the three year statute of limitation. The Pretus case should be considered as a rare exception to the rule. Seamen should not wait to file such a claim as the Court will very likely dismiss your case and therefore your opportunity to be compensated for your injuries. Anyone with questions regarding this case or any injury sustained while working aboard a vessel should contact the Law Office of Beard, Stacey, Trueb and Jacobsen to know your rights and options in court. To contact us, please call 206.282.3100 or visit our website at www.atsealawyer.com.

Posted by Beard Stacey & Jacobsen, LLP at 4:08 PM | Permalink

The United States Second Circuit Court of Appeals recently ruled that the fee imposed on ferry passengers was unconstitutional under the Commerce Clause and the Tonnage Clause. This case questions the constitutionality of a fee imposed on passengers traveling via private ferry from Bridgeport, Connecticut to Port Jefferson, New York. The Bridgeport Port Authority (BPA) imposed this fee after leasing the dock space from the privately owned ferry company, the plaintiff in this case. The BPA argued that this lease entitled them to charge a fee for passengers making the voyage.
The Court disagreed, however, asserting that this fee was both too high and unconstitutional. First, the Court relied on the “dormant” Commerce Clause jurisprudence, which determines the constitutionality of government imposed fees on individuals engaged in interstate commerce. The Court determined that this clause was designed to make the users of state-provided facilities responsible for a reasonable fee needed for the construction and maintenance of the facility. Ultimately, the Court ruled that the fee imposed by the BPA was not a fair approximation of a ferry passenger’s use of facilities because the BPA sought to maximize profit as oppose to simply pay for the construction and maintenance of the dock.
This fee also violated the Tonnage Clause, which “prohibits…duties to raise general revenues.” The Court used testimony from the BPA’s own expert witness to justify their ruling. During the trial, an expert for the BPA stated that the BPA “act[s] as an incubator for growth of economic activity,” confirming the Court’s belief that the BPA was focused on increasing revenue rather than simply paying for the construction and maintenance of the dock.
For all questions related to this case, maritime law, other cases and injuries, please contact the law offices of Beard, Stacey, Trueb and Jacobsen at 206.282.3100 or visit our website at www.atsealawyer.com.

Posted by Beard Stacey & Jacobsen, LLP at 4:19 PM | Permalink

A recent decision by the United States Supreme Court overruled the Alaska Supreme Court, ruling that the City of Valdez, Alaska improperly imposed a personal property tax upon the value of large vessels traveling to and from the city. Justice Breyer, writing for the majority, asserted that this tax violated the Tonnage Clause, which forbids a “State… without the consent of Congress, to lay any duty of Tonnage.” This ordinance imposed a personal property tax upon all “boats and vessels of at least 95 feet in length” that regularly traveled to the city, which would require a charge for the privilege of entering, trading in, or lying in a port. This ordinance would ultimately apply to 28 vessels in its first year.
While the direct language of the ordinance was not contradictory to the Tonnage Clause, the Court interpreted the language of the clause in light of its purpose to restrain the states from exercising taxing power injuriously to the interests of each other. Breyer also dismissed the city’s claim that the tax was simply a value-related tax on personal property, asserting that vessels are not taxed in the same manner as other property of the citizens. Justice Breyer was joined by Justices Scalia, Kennedy, Ginsburg and Alito. In addition, Chief Justice Roberts and Justice Thomas filed an opinion concurring with a portion of Justice Breyer’s opinion.
For all questions related to maritime law, cases and injuries, please contact the law offices of Beard, Stacey, Trueb and Jacobsen at 206.282.3100 or visit our website at www.atsealawyer.com.

Posted by Beard Stacey & Jacobsen, LLP at 9:14 AM | Permalink

The National Marine Fisheries Service (NMFS) recently passed new regulations requiring operators to provide a USCG-approved pilot ladder on domestic fishing vessels with a freeboard of greater than four feet. This pilot ladder will be a safe and enforceable means for authorized personnel to board larger fishing vessels. This is required for vessel operators to carry out their duties under the Magnuson-Stevens Fishery Conservation and Management Act and the Atlantic Tunas convention Act. This law resulted from the NMFS’ assessment that the prior safety standards for the boarding ladders “proved to be inadequate.”
A “pilot ladder,” also referred to as a “Jacob’s ladder,” is a flexible ladder with rigid steps with non-skid coating, flexible rope between rungs to reduce crushing injuries, anti-twist rungs, and rounded edges to reduce damage to the vessel and for safety. This new rule also establishes the vessel operator as the individual responsible for providing a pilot ladder when conditions exist that require such equipment. This will avoid situations where boarding personnel were required to provide their own ladder or abort the boarding, situations that occurred before this rule was enacted.
For questions regarding this new rule, an injury sustained while boarding a vessel or while working aboard a vessel, please contact the law office of Beard, Stacey, Trueb and Jacobsen at 206.282.3100 or visit our website at www.atsealawyer.com. The lawyers of Beard, Stacey, Trueb and Jacobsen specialize in personal injury cases sustained while working on a vessel.

Posted by Beard Stacey & Jacobsen, LLP at 9:11 AM | Permalink

A 2006 report regarding commercial fishing fatalities has pinpointed Pacific Coast fisheries as one of the most dangerous places to work in the country. This report, written by the Center for Disease Control (CDC), reveals an average annual fatality rate of 115 deaths per 100,000 fishermen, more than 28 times the national fatality rate of 4 deaths per 100,000 average U.S. workers. The average annual fatality rate for Washington, Oregon and California, however, was more than double the annual rate of fishermen deaths at 238 deaths per 100,000 fishermen. The leading cause of these fatalities is weather conditions, including large waves and subsequent flooding. None of persons whose deaths resulted from vessel loss were able to enter a functioning life raft, either because of the inadequate size, location or condition of the life raft.
While commercial fishing has long been associated with high fatality rates, this report is the first to identify extremely dangerous Pacific Coast fisheries outside of Alaska, whose fatality rate has dropped significantly to 107 deaths per 100,000 fishermen. While Alaska’s Bering Sea crab fishery has been described as the most dangerous fishery on the Pacific Coast, data from this report indicates that the Northwest Dungeness crab fleet had a greater number of fatalities and a higher fatality rate during 2000-2006. Many attribute such a dramatic change in the fatality rate to the significant safety improvements made in Alaskan fisheries during the 1990s. These safety improvements included requirements for emergency gear, development of hands-on safety training, and tailoring safety interventions addressing specific hazards for particular fishing fleets.
Such impressive results have many seeking similar requirements on all Pacific Coast fisheries. The CDC is particularly concerned regarding the lack of use of life rafts and immersion suits, likely contributed to a survival rate of 94% among commercial fisherman aboard Alaskan vessels that capsized during 1997-1999. The CDC determined that, during 1992-2004, survivors of vessel sinkings in Alaska were approximately seven times more likely to have worn an immersion suit and 15 times more likely to have used a life raft that the decedents. It is for these reasons that the CDC is attempting to add emphasis on formal marine safety training in the deployment and use of life rafts and immersion suits in the Pacific Coast fisheries. Another suggestion by the CDC to improve the fatality rate is the implementation of a safety program tailored to the Dungeness crab fleet, which would reduce deaths in the Northwest Dungeness crab fishery.
The law offices of Beard, Stacey, Trueb & Jacobsen would like to urge all seamen to wear appropriate safety equipment and complete the correct safety training, as these statistics have demonstrated their life-saving effects. We would also urge all vessel owners to properly equip their vessels with appropriate equipment such as functioning life rafts.

Posted by Beard Stacey & Jacobsen, LLP at 5:04 PM | Permalink

A judgment for 4.1 million dollars has been entered in favor of the Estate of a Tacoma Longshoreman by United States District Court Judge Robert Bryan. The judgment arises from a 40-foot shipping container accident in November of 2006 at the Port of Tacoma. The longshoreman’s estate alleged that a negligently packed container allowed plywood cargo to shift in the container causing a rollover of the yard tractor resulting in the death. The judgment included 2.5 million dollars for loss of consortium, love, and affection to the deceased wife and children, economic losses of over 1.1 million, and predeath pain and suffering for the several hours decedent survived before his death. The longshoreman’s Estate was represented by Beard Stacey Trueb and Jacobsen. The case was filed in United States District Court for the Western District of Washington at Tacoma.

Posted by Beard Stacey & Jacobsen, LLP at 2:24 PM | Permalink