What happens when the equipment is thrown away? What happens when the injury scene is purposefully altered? There is a rule of law regarding “spoliation” of evidence.
Spoliation of evidence is generally defined as either willfully or negligently destroying or loosing documents or objects that could be used during legal proceedings. Washington State defines spoliation as the “intentional destruction of evidence.” Inherent in this is the assumption that the party which destroyed the evidence, even if the destruction was negligent and not intentional, knew or should have known the evidence would be legally pertinent. A lack of evidence may also beg the question: Did the evidence exist in the first place?
When a defendant destroys evidence, it’s presumed that the defendants knew that the evidence was unfavorable to them. But first, the spoliation must be shown to affect the case. If the evidence would have been relevant to the case, the defendant then must be shown to have been reasonably knowledgeable that the evidence would have been necessary for the case, and therefore be held culpable. To prove the spoliation was not negligent or willful, the defendant would have to show that the destruction of evidence occurred in the normal course of business, as with normally scheduled records purging, and that they did not destroy evidence out of self-preservation.
Spoliation may result from a plaintiff’s actions, as well. In Vodusek v. Bayliner Marine, Inc., 71 F.3d 148 (4th Cir. 1995), Mr. Vodusek died of burns he suffered in an explosion which occurred when he started the bilge pump soon after having refueled his boat. His plaintiff widow’s expert destroyed evidence during the expert’s inspection of the boat and fuel line. The fact that the expert filmed and photographed his work in a show of “good faith” as he conducted his inspection did not alter the court’s decision that, intentional or not, spoliation of evidence had indeed occurred; the information the expert collected could not be used by the plaintiff to prove her case because the evidence supporting the information had been destroyed, and likewise the defense was unable to access and use the same evidence to support their defense. In Vodusek, without useable evidence, the ultimate result was a verdict for the defense, which the appeals court affirmed. The bottom line is that destroyed evidence is evidence which exists for neither party.
Spoliation may also earn an attorney discovery sanctions. Karl B. Tegland, in Washington Practice: Civil Procedure sec. 21.33, writes: “In Henderson v. Tyrrell…. To minimize risk, cautious attorneys should continue to advise against the destruction of evidence without first obtaining a court order authorizing such destruction.” In other words, it would be wise to preserve anything that may reasonably comprise evidence, including log books, maintenance receipts, and any equipment involved in an accident, in an unaltered state, pending litigation. And certainly, neither party may withhold non-destroyed evidence of which they are knowledgeable.
A very interesting twist on spoliation of evidence is exemplified in Menges v. Cliffs Drilling Company, 2000 WL 765082 (E.D. La. 2000), wherein the employee/plaintiff, who had been complaining of post-accident back pain, had back surgery before an independent medical exam had been performed. The employer/defendant claimed that Mr. Menges had intentionally destroyed evidence by having this pre-IME surgery. The judge ruled that even though Mr. Menges had had a duty to have communicated with his employer about his pending surgery (breach of that duty is a separate matter), repairing the injured back did not constitute spoliation of evidence, especially considering his employer had full access to his medical records prior to the surgery.
Whenever there is injury at sea, especially an injury that involves equipment or physical evidence, it is the best practice to preserve that evidence. But, the passage of time is not a friend to the preservation of evidence. Things get lost. Equipment gets repaired, and broken equipment is tossed. Therefore, the best practice is to have a knowledgeable representative inspect the accident scene and equipment immediately after the injury. Lawyers are usually able to arrange an inspection of the scene while the evidence is fresh and undisturbed. But, sometimes, people delay in obtaining representation. While there may be some legal relief for the spoliation of evidence, courts are unpredictable in their rulings in this area. So, the best advice is not to let the injury scene go cold.
Specific to the commercial fishing industry, the Act provides the USCG more authority to amend and clarify, regulate, and enforce safety standards. Vessel and equipment standards now are to be determined based on where the vessel operates, not on where it’s registered. The goal of these uniform standards is to ensure fairness and to simplify to application of regulations. The emphasis here is on safety, both to prevent accidents and to buy survival time while awaiting rescue. The amendments in the Act include the following:
The master of vessels operating beyond 3NM of baseline must keep an official log of machine maintenance and testing, crew instructions, and safety and emergency drills, as well as a record crew hours, injuries, and illnesses. Medical supplies, appropriate for the size of vessel and crew, are to be accessible on board.
At least once every two years, each fishing vessel operating beyond 3NM of baseline is to be examined dockside for safety and equipment compliance. A successful exam will result in the issuance of a Certificate of Compliance (COC). This COC must be valid and kept on board at all times, and the vessel must be kept in compliance, or else risk being sent back to port for “unsafe operation.”
Training for operators of fishing vessels operating over 3NM beyond the baseline must earn a certificate in a training course, demonstrating their knowledge of seamanship, navigation, charts, weather, maintaining vessel stability and avoiding collisions, fire safety and control, damage control, survival, emergency medical care, drills, and use of communication equipment. The certificate will be valid for five years; a refresher course will keep certification current. (Licenses are required for masters operating vessels over 200 gross tons. This certificate ensures the competency of masters of vessels less than 200 gross tons.)
There are also amendments based on overall length of a vessel. In order to ensure minimum loaded freeboard, thus addressing the safety issue of vessel overload, vessels of 79 feet or more in overall length, built after July 1, 2012, are to be assigned a load line. Additionally, a vessel built or on before July 1, 2012, which undergoes substantial dimension or vessel type modification after July 1, 2012, must comply with an “alternate load compliance program.”
A vessel of 50 or more feet in length, built after July 1, 2012, and operating over 3NM beyond baseline, must meet the classification standards set by a recognized classification society. (The USCG determines which classification society or societies will fulfill this task.) Vessels built prior to July 1, 2012, will remain in their existing class.
Vessels of less than 50 feet in overall length, built after Jan. 1, 2011, must meet equivalent minimum safety standards set for recreational vessels.
To address the safety risk of hull or equipment failure, vessels of 50 feet or more in overall length that operate beyond the 3NM baseline, are built before July 1, 2012, and are 25 years or older as of 2020, and vessels built before July 1, 2012, that have undergone “substantial change” to dimension or vessel type prior to July 1, 2012, must comply with an “alternative safety compliance program,” which includes construction standards requirements. This alternate safety compliance program is to be developed by the USCG and the fishing industry, allowing for regional and fishery differences as necessary, detailed by 2017, and in force by 2020.
This Act also allows crew member who face discrimination after reporting safety violations to use the Department of Labor complaint process, to which employees in other industries have long had access.
Hopefully, this attention to safety in the fishing industry, where many serious at-work injuries occur and where worker death is still the highest in the nation, will save many lives and livelihoods in future.
Accepting Dana Clausen’s team of lawyers’ arguments, the Washington State Supreme Court denied Icicle Seafoods’ attempt to cap a seaman’s right to punitive damages. In Clausen v. Icicle Seafoods, Inc., Case No. 85200-6, the Washington Supreme Court upheld a jury verdict of 1.3 million dollars in punitive damages against Icicle. The jury found Icicle’s conduct in refusing to pay the injured seaman’s medical bills and maintenance in an amount of $35,000 to be willful, wanton and malicious conduct, and that it was financially motivated. The Court rejected Icicle’s argument that the Supreme Court’s decision in the Exxon Valdez case required that there be a one-to-one ratio of compensatory damages to punitive damages. The Washington Supreme Court stated the policy and purpose of punitive damages is to punish and deter egregious conduct and rejected Icicle’s argument that punitive damages should be capped based upon the size of the underlying claim. The Court noted that, because of Icicle’s conduct, Clausen, who had suffered a back injury in a lifting accident aboard Icicle’s vessel, had been forced into poverty and was forced to move into a broken down wreck of a travel trailer while trying to live on just a $20 a day living allowance.
]]> The Clausen decision is also notable as it ruled compensatory attorney fees, as well as punitive damages, are available to injured seamen who are wrongfully denied benefits. Icicle’s argument that attorney fees were not to be considered as part of the compensatory award was rejected, as was their argument that the attorney fees must be decided by the jury.During the Clausen trial, defense trial counsel was held to have breached the discovery rules and was sanctioned. In a separate post trial proceeding involving the Washington State Bar Association, defense trial counsel received further sanctions. These sanctions revolved around the failure to produce a secret medical report commissioned by Icicle. The undisclosed medical report recommended injections and surgery for Clausen, but the information was never disclosed to Clausen.
The threat of punitive damages in maintenance and cure cases serves a vital and critical role in the system of justice for injured seamen and fishermen. The Supreme Court of the United States has declared that maintenance and cure benefits are to be free of uncertainties and should be liberally administered. Over the past twenty years without the threat of punitive damages, many vessel owners have ignored their maritime obligation and wrongfully withheld benefits, causing severe hardship to their injured workers. The Washington Supreme Court decision yesterday, together with the Supreme Court of the United States decision in Townsend v. Atlantic Soundings, will ensure in the future that maintenance and cure benefits are promptly and fairly provided to injured seamen. In the past two years since the decision in Townsend and the trial court’s decision in Clausen, the average maintenance rate for injured seamen has more than doubled, and vessel owners have been far more responsive to seamen’s needs for medical care.
Jim Jacobsen of Beard Stacey & Jacobsen, and Larry Curtis represented Dana Clausen during the two-week jury trial. They associated Phil Talmadge, a retired Supreme Court Justice, for purposes of appeal. The 7-2 Clausen decision was issued by the Washington Supreme Court on March 15, 2012 and can be found at Case No. 85200-6.
]]>In 2006, Captain Kevin Murray was working heavy weather as a Columbia River Bar Pilot when he fell in a similar transfer, losing his life. Investigation into Captain Murray’s death in a subsequent maritime wrongful death claim brought by Beard Stacey & Jacobsen revealed a number of deficiencies in the Columbia River Bar Pilots’ training and procedures. Columbia River Bar pilots now vigorously train in search and rescue procedures. The cause of Capt. Dempsey’s accident will be investigated by the Columbia River Bar Pilots, as well as probably the United States Coast Guard and the NTSB.
The LADY CECELIA is a 62-foot dragger owned by Dave Kent of Bay City, Oregon. Few details are known about the vessel at this time other than it was first registered in Oregon in 1991. Under Federal Regulations, vessels such as the Lady Cecelia are required to carry regularly serviced life rafts and survival suits, and crews are required to regularly be trained in safety procedures. Unfortunately, safety inspections of vessels such as the Lady Cecilia are not mandated by regulation.
Complicated Federal Maritime laws govern remedies available to families of crewmen lost in fishing accidents. Frequently, vessel owners utilize an archaic law called the Limitation of Liability Act to attempt to limit compensation available to the families of lost crew.
In 2009, Combined Anti-piracy Task Force 151 (CTF 151) was formed to combat the increasing boldness of the pirates. CTF 151 is an international force which has been commanded by members of various navies from 25 countries, including the U.S., Pakistan, Turkey, South Korea, and New Zealand. The mission of CTF 151 is to protect shipping lanes from piracy and to restore freedom of navigation and legitimate maritime commerce.
A well-known incident off Somalia, which occurred on April 8, 2009, involved the American-flagged M/V MAERSK ALABAMA, 508-foot container ship. At that time, there was an advisory that ships keep at least 600 nautical miles (nearly 690.5 miles) from the Somali coast. MAERSK ALABAMA was 240 nautical miles off the coast when pirates boarded her. Miguel Ruiz, John Cronan, and Richard E. Hicks were crewmembers who were confined and roughed up by the pirates; these men sought compensation under the Jones Act and General Maritime Law for personal injuries resultant of the pirates’ treatment of them. Ruiz, et al. v Waterman Steamship Corporation and Maersk Line Limited – 2011 WL 4089416 (Tex.App.-Houston [1st Dist.] 2011). Under the Jones Act, the plaintiffs in Ruiz seek to recover damages by showing employer negligence. That case has not yet been resolved and the final outcome is uncertain.
There have not been many cases decided by courts facing the question of employers’ duties to protect employee seamen sailing in areas known for pirate activity. Some of the questions likely to arise at trial include: What were the duties of the employer (Maersk in the Ruiz case) toward its crew in waters known for pirate attacks? Did the employers ignore advisories and warnings? Had the employers implemented any of the self-protection measures discussed in BMP4? Could they have avoided attack and capture by sailing a different route? Were the crew trained, and should they have been trained, for such an emergency? In other words, was the employer negligent toward its crew, and thus liable for the injuries caused by the pirates?
Our guess is that courts will rule that the employer must take reasonable steps to protect employees sailing in dangerous situations. This may require special training for the crew. It may require hiring of guards. Employers may have to modify their vessels in some way. We will keep an eye on this developing area of law and report what we find.
In Fuszek v. Royal King Fisheries, Inc., 98 F.3d 514 (1996), the Ninth Circuit Court of Appeals found that a seaman is entitled to full damages, and not subject to reduced damages for comparative negligence, when the employer violates U.S. Coast Guard regulation. In Mr. Fuszek’s case, the question was not whether the machine was guarded, for all admitted and agreed that it was not guarded. The question was whether Mr. Fuszek’s award for damages should be diminished due to what the defendants claimed was Mr. Fuszek’s comparative negligence.
In MacDonald v. Kahikolu Ltd., 442 F.3d 1199 (9th Cir. 2006), wherein Mr. MacDonald contended that Kahikolu Ltd. violated Coast Guard safety regulations, the court cited Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct.394, 2 L.Ed.2d 382 (1958), which ruled that, “…under the Jones Act, a violation of a statue or Coast Guard regulation that causes injury or death of an employee creates liability ‘in the absence of any showing of negligence….’”
These cases bring home the point that, under the Jones Act, if an employer violates a federal statute or a Coast Guard regulation such as the one on machine guarding, and that that violation plays any part, no matter how small, in the injury of an employee, comparative negligence becomes moot, and the employee may recover full damages.
There are numerous codes and regulations for machine guarding. 46 CFR Section 28.215(b) is a U.S. Coast Guard regulation which states, “Suitable handcovers, guards, or railing must be installed in way of machinery which can cause injury to personnel, such as gearing, chain or belt drives, and rotating shafting. This is not meant to restrict necessary access to fishing equipment such as winches, drums, or gurdies.”
46 USC 4502(b)(2)(G) states in some detail the safety standards required to be met onboard a fishing vessel, including in subsection (G), that equipment on the vessel must minimize the risk of injury to the crew during vessel operations if a risk of serious injury exists that can be eliminated or mitigated by that equipment.
Occupational Safety and Health Administration (OSHA) addresses machine guarding requirements in 26 CFR 1910.212-219, with the general requirements listed in section 212. Lockout/tagout procedures are addressed at OSHA 29 CFR 1910.147 and 29 CFR 1910.147 App. A.
Various states have regulations addressing machine guarding. For instance, WAC 296-24-15001 (Washington State), “Machine Guarding,” states that, at the point of operation which exposes an employee to potential injury, a machine guard must be in place “to prevent the operator from having any part of the employee’s body in the danger zone during the operating cycle.” This applies whether formal standards have been set or not. In WAC 296-24-15007, we read, “All power-driven machinery shall be stopped and brought to a complete standstill before any repairs or adjustments are made, or pieces of material or refuse removed, except where motion is necessary to make adjustment.”
The National Institute for Occupational Safety and Health (NIOSH) tracks the various causes of fishing-related deaths on the Commercial Fishing Incident Database (CFID). According to NIOSH, the annual fatality rate among commercial fishers for 2000-2010 averaged 124 per 100,000 workers. This is very high, considering that the average annual fatality rate of all U.S. workers combined is 4 per 100,000. Ten percent of these fishing-related fatalities were attributed to on-board injuries, some of which resulted from unguarded machinery; we may surmise that the injury rate is higher than the fatality rate.
NIOSH has developed various “Engineering Solutions” which can be retrofit to certain mechanical devices, such as an emergency stop for winches. Through the NIOSH Commercial Fishing Safety Research Program, fishers, fisheries, and other organizations may access NIOSH safety information and safety recommendations.
All of these codes and regulations reflect common sense. A running, unguarded machine is an accident waiting to happen, even when the employee uses all caution possible. In the fishing industry, work is usually time sensitive and employees are under pressure to work quickly. There have been instances where employers have not adhered to safety regulations or supplied sufficient work and safety training. Choosing speed (profit) in the short run may lead to loss of profit in the long run, due to preventable employee injury and even tragic loss of life.
The law recognizes no excuse for an employer furnishing unguarded machinery, and thus these codes and regulations serve to protect those employed in the fishing industry. That said, it must be stressed that protection through the mandatory application of reasonable preventative practices is far superior than applying the law after the fact.
NMCRS case workers are trained to address the specific financial needs of service members, veterans, as well as their eligible families and survivors. NMCRS services include student loans or grants, interest-free emergency loans or grants, and financial counseling at no charge. A number of NMCRS offices also run thrift shops and have visiting nurse programs. If you would like to learn more about NMCRS, please visit www.nmcrs.org.
A cruise ship ticket is also known as a “cruise ticket contract.” What makes a contract valid are four points: offer, acceptance, free will to enter the contract relationship, and equitable consideration. Those entering a contract are assumed to be aware of and in agreement with the contract details, and a court will usually uphold a contract which has met all the legal criteria. The exchange of consideration, such as exchanging money for a cruise ticket, touches on all four points of a valid contractual agreement between parties. The cruise ticket contract wording, in what most of us would call the fine print, is said to be on the ticket and is otherwise accessible to passengers. On the Costa web site, passengers are encouraged to read their cruise ticket contract. By purchasing the ticket, a passenger has arguably entered a contract and agreed to the conditions therein, which include a series of limitations and waivers in case of dispute. It does state that Costa will be liable for its negligence. The caveat is, any negligence must be proven by the claimant in court.
At last report, Costa Cruises, based in Genoa, Italy, a Carnival Cruise Line subsidiary, had offered each passenger who was not physically injured on COSTA CONCORDIA 11,000 euros, which translates to roughly $14,500 U.S., to cover property loss and damage, ticket reimbursement, travel expenses, and medical bills arising from the disaster. A number of passengers have decried this figure as not even covering their property loss, stating that it also doesn’t begin to cover the mental or emotional damage inflicted. It’s been pointed out that paying the approximately 3,200 non-physically injured survivors $14,500 each would cut into about twelve days of Carnival Corporation profits for 2012. Carnival has since stated that its net income for 2012 may be reduced by as much as $175 million, although future profits are expected to normalize. Costa plans to address compensation to those with physical injuries and to the families of those who perished on an individual basis.
Despite the wording on the Costa cruise ticket contract, lawsuits, including class action suits, by U.S. citizens and citizens of other countries are being filed in Florida where Costa has its headquarters. The families of those who lost their lives fear that Italian law and courts will not adequately address their losses. It remains to be seen whether the Florida court will keep the case or uphold the forum selection clause in favor of the Italian court. Even if the Florida court finds a way to keep the case on jurisdictional grounds, it may still uphold the choice of law clause stated in the cruise ticket contract. In such a case, damages would be governed by Italian law. One thing is certain, and that is the legal stage is set for a gigantic battle on the enforceability and validity of cruise ticket contracts.
U.S. courts have consistently upheld many cruise ticket contract terms in the past. Therefore, it is possible that the U.S. courts in the COSTA CONCORDIA case will dismiss any action filed in the U.S., or, at least, follow Italian law in awarding damages. On the other hand, there are several good, creative lawyers pursuing legal actions in Florida and elsewhere. Perhaps the American courts will be persuaded to keep the case because Costa and Carnival are so closely affiliated. American courts may also be inclined to try to keep a case if it can be shown that the remedies to the families that are available in Italy are grossly inadequate. We will continue to follow this story.
Year - Fatalities per 100,000
2010 - 116
2009 - 200
2008 - 129
2007 - 112
2006 - 141
2005 - 118.
According to NTSB data, the death rate averaged 158 per 100,000 between 1992 to 2008 for the fishing industry, whereas the national work fatality average for that time period was four deaths in 100,000. Recognition of this unconscionable death rate, as well as the high rate of non-fatal injuries, and the financial and emotional costs involved in work-related death or injury has driven a focus on better fishing-related safety.
Mandatory vessel inspections are the rule for a few fishing vessels over a certain size, and there are regulations concerning what types of safety gear are required and in what quantity each type of vessel should carry. The Coast Guard encourages those on smaller fishing vessels to request a Voluntary Safety Check, in which the Coast Guard conducts an inspection and provides an evaluation with suggested safety improvements, without citations or fines.
Certain vessel operating licenses require a pre-employment medical check-up. To save paperwork and time, it’s been recommended that these check-ups be done by specific doctors who are designated by their familiarity with the standards and requirements specific to the industry. The goal is not to keep people from working, but to ensure that they receive proper health care and health management so that they will be able to continue to work safely, including older fishers, whose experience and expertise is invaluable.
The U.S. Coast Guard has set a minimum 50% random drug testing rate for covered crewmembers of both inspected and uninspected vessels for 2012. In 2010, the positive drug test rate was below 1%, and if the 2011 rate remains under 1%, the new random drug testing rate for these crewmembers will be set at 25%.
Another measure for certain vessels and certain fisheries, which has been in place since 2008, is the Individual Fishing Quota (IFQ) system, which replaced the former “derby” system in order to address fishery sustainability issues as well as to increase safety among fishers. With IFQ, fishers bring in a steady supply of fish all year until their individual or community quota has been met. Fishers are able to buy, sell, lend, and trade their catch shares with one another. Now, fishers and fisheries can better plan their catches according to market demands and are able to take the time to work more safely. With IFQ, there is no longer a competitive “race” to catch the most fish in one short season, a system in which so many fishers felt forced to take high risks such as going out in too-hazardous conditions, bypassing safety precautions in favor of speed, and overloading boats. In the long run, increased safety translates into increased efficiency.
An area which should be regulated, in our view, is the terribly long hours that the ship owner requires the crew to work. Currently, with respect to virtually all fishing vessels, there are no wage and hour laws establishing safe working conditions. Crews on the fishing vessels, even those with quotas, are required to work 16 hours a day, sometimes longer, seven days a week, for months at a time. As we have reported in prior posts, such primitive work conditions create a dangerous work environment. People working tired are people at risk, especially around dangerous equipment and in a dangerous environment. Labor laws governing work hours have been in place in the U.S. for a hundred years in factories and other work places. It’s time to regulate working conditions on fishing vessels. Until this is done, all the inspections and safety equipment required by the Coast Guard will not prevent the terrible losses this industry suffers at sea.
Fishing industry fatality has been of concern for years and the death rate is still too high, even given the inherent dangers at sea. Perhaps what underlies any future success at preserving life and limb is the recognition and ongoing awareness of the issues, not accepting these fatalities as simply a normal part of fishing, and continuing to focus on improving work conditions and reducing risks for fisheries and individuals.
Mr. Ili’s accident and injury occurred around 3:45 p.m., just into the last hour of a 16-hour shift. He had taken his short breaks during this shift. According to court documents, Mr. Ili said he felt the ship roll to the side, and then his left leg folded underneath his right leg, whereupon he was unable to right himself, and his right knee hit one of the conveyor belt support poles as he landed on his back.
In November of 2008, the U.S. District Court of Western Washington granted “summary judgment” in favor of ASC, stating that this injury by itself neither established ASC’s liability for negligence under the Jones Act nor for unseaworthiness under Maritime Law, and that Mr. Ili had failed to establish any triable issues of material fact supporting his claims. In other words, the Federal judge ruled that even if a jury believed everything Mr. Ili said was true, Mr. Ili could not win his case because his work schedule and related issues were not legal causes of his injury.
Mr. Ili appealed this ruling to the U.S. Court of Appeals Ninth Circuit. The Ninth Circuit reversed and remanded the case for trial. The Court of Appeals ruled that there were, in fact, a number of material issues of fact that a jury could decide on, and that the district court’s summary judgment in favor of ASC had therefore been in error.
APPEALS COURT REVERSES AND REMANDS
The Court of Appeals disagreed with the District Court ruling and held that there were indeed triable issues of material facts: For instance, does working a 16-hour shift every day for months with no days off constitute negligence, and does it create an unseaworthy condition? Did ASC know that these shifts may have been unsafe? If so, could such negligence or unseaworthy condition have led to Mr. Ili’s accident and injury? It’s not questioned that Mr. Ili was employed as a seaman by ASC, and that, as such, ASC owed Mr. Ili a safe work environment and seaworthy work conditions. It’s also not questioned that ASC was fully aware of the hours ASC required of its workers.
Mr. Ili’s lawsuit was based upon “Jones Act negligence” and a claim of “unseaworthiness.” Negligence is a legal claim which requires a showing that the employer did not act reasonably. “Unseaworthiness” requires a showing that the vessel, equipment, or crew was not “reasonably fit.”
To support Mr. Ili’s claim that the 16-hour shifts constituted too few crewmembers for the workload, leading to fatigue, which in turn led to injury, Mr. Ili used the deposition of an ASC employee who had stated that ASC was experimenting with 12- and 14-hour shifts on other boats in order to determine if these shorter shifts were better for the workers. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 499 (1971) states, “A vessel’s condition of unseaworthiness may arise from any number of circumstances, including an insufficient number of men assigned to perform a shipboard task, or the existence of a defective condition, however temporary, on a physical part of the ship.” In other words, the condition of the crew is included in defining an unseaworthy condition, the details of which should also be left to a jury. As a result of the appellate court’s decision in this case, a jury will be able to decide the issue of negligence and unseaworthiness resulting from such long hours, too little man power, and fatigue.
NOTE
It has long been studied and demonstrated that there is a strong correlation between lack of sleep and higher accident rates both for the general population and in various occupations. A New Zealand study, done specifically on fishermen who were working onboard for days at a time concludes: “The longer duration of trips during the peak of the fishing season increases the risk of performance impairment due to greater cumulative sleep loss than would be expected on typical three-day trips….Once at sea, the day-to-day variability in activities due to uncontrollable factors, such as fishing success, repairing gear, and weather conditions, mean that contingency planning is required for managing situations where the entire crew have experienced long periods of intensive work with minimum recovery opportunities.” 1
Intuitively, all of us know that, at a certain point, our safety will suffer if we are forced to work in a fatigued condition. That point may vary from person to person, but working 16 hours, seven days a week, for months at a time is creating an environment for inevitable injuries. The Ili Court of Appeals apparently recognized this, and eventually a jury may find an employer responsible for an injury caused by these barbaric conditions.
The lawyers at Beard Stacey & Jacobsen, LLP, have handled many cases where fatigue caused seamen to take risks that they would not ordinarily take had they been rested. We are armed and ready, based on this Appellate Court’s decision, to press the issue further in a trial or in settlement negotiations.
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1 “Sleep and Sleeplessness of Fishermen on Rotating Schedules.” Gander P., van den Berg M., Signal L. Chronobiology International (April 25, 2008) 389-98.
Under maritime common law, a seaman who is injured or is taken ill in the course of employment on a vessel has the legal right to a daily allowance and to medical treatment for that injury or illness from the vessel owner. This is known as maintenance and cure, cure being the medical treatment. Maintenance is essentially “room and board.” ASC had questioned whether the injury was directly caused by the falling box, but direct cause is not an issue when it comes to maintenance and cure, and it does not matter if the condition was preexisting. What matters is that the seaman was employed on the vessel and that the injury or illness took place in the course of his or her employment on that vessel. The seaman must merely be able to substantiate medical costs, board, and lodging. Mai met all these criteria.
Bloom v. Weeks Marine, Inc., 227 F. Supp. 2d 1273, 1275 (M.D. Fla. 2002), states that the vessel owner may “monitor the seaman’s medical condition to determine when cure has occurred,” but that the owner does not have the right to demand an IME. The case of Mai underscores that an employer may not demand an IME for maintenance and cure, and that they may not base maintenance and cure payments pending that IME.
ASC had been paying maintenance and cure for approximately two years prior to demanding the IME and ceasing payments, ASC had never called into question Mai’s doctor’s credentials, intrinsically acknowledging the legitimacy of Mai’s claim. Mai’s doctors had never reported maximum cure for Mai’s condition. The Court concluded that ASC’s cessation of maintenance and cure was driven by a desire to prepare for possible litigation, not by Mai’s medical needs, and was thus found unreasonable and willful. Therefore, Mai was awarded compensatory damages and her attorney fees in addition to her back maintenance and cure. This is supported by Morales v. Grijak, Inc., 829 F2d 1355, 1358 (5th Cir. 1987), where it’s held that if the vessel owner’s denial of maintenance and cure to a legitimate claim are found to be unreasonable, then the owner will owe compensatory damages as well as the maintenance and cure. As in Bloom, Morales does not support an employer’s demand for an IME.
The court decision in this case reinforces the traditional right of seamen to receive medical care following work related injury. In recent years, with the blizzard of negative attacks on the rights of injured workers, some courts have strayed from the historically solid principles that protect seamen. But, with rulings like Mai and Bloom, perhaps courts will begin to correct the balance firmly back into the seaman’s favor.