Maritime Injury Law Blog

The Navy-Marine Corps Relief Society: Serving Those Who Serve Us

2012-02-21T00:51:59Z

Beard Stacey & Jacobsen supports our local Navy service members and families through the Navy-Marine Corps Relief Society (NMCRS). NMCRS is a non-profit organization and, as such, programs are funded completely through charitable donations.

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.

Costa Concordia Raises Issue of Passenger Rights of Recovery

2012-02-14T18:21:44Z

During the night of January 13, 2012, the 955-foot Italian-flagged COSTA CONCORDIA struck a rock and capsized near the coast of Giglio, Italy, resulting in great loss of property and life, including two Americans presumed dead. This tragedy has renewed focus on cruise ship safety and the rights of cruise ship passengers, particularly pertaining to the matter of legal jurisdiction, especially given the number of multinational passengers. Modern cruise ships are often referred to as floating cities now due to their enormous size, carrying thousands of passengers and crew.

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.

]]> Two clauses of concern on the Costa ticket address the jurisdiction and which laws apply for possible legal claims against Costa. The “forum selection” clause stipulates the specific court in which a plaintiff may file a claim against Costa. The “choice of law” clause is where Costa names which country’s laws will apply to that claim. In this instance, the forum is in Italy and the choice of law is Italian law. Time limits on legal notices and actions are stated on the contract, and there is also a clause in the Costa contract barring the filing of a class action lawsuit. The burden of proving the jurisdiction and the claim lies on the claimant.

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.

Focus on Fishing Industry Safety

2012-02-14T00:50:44Z

A preliminary report for 2010, made this past August by the U.S. Bureau of Labor, shows that fishers and those in related fishing industry work continue to have the highest fatal injury rate of all employment categories in the U.S. This chart sums up the higher than average occupation-related death rate in the fishing industry:

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.

]]> The sea is unpredictable and a crisis can arise within seconds. According to the Coast Guard and industry experts, preparation is key and includes having life jackets, survival suits, life rafts, reliable communication equipment, EPIRB, flares, and the emergency training to know what to do and when to do it. Crews at lower risk for loss of life and injury are those trained in the proper use of fishing and vessel equipment, including safety stops on equipment, working with a partner, and in keeping equipment inspected and maintained. In the event of a boat capsizing or sinking, crews with the best survival rate are those with emergency training and quick access to safety gear.

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.

Is There a Correlation Between Long Shifts, Too Few Crewmembers, and Unseaworthiness?

2012-01-25T22:36:37Z

BACKGROUND
In the matter of Samson Ili vs. American Seafoods Company, LLC, and American Triumph, LCC, et al, a Washington Federal trial case, Samson Ili worked as a factory processor aboard F/T AMERICAN TRIUMPH for four years until February 9, 2007, the date of his injury. AMERICAN TRIUMPH is part of the American Seafoods Company (ASC) fleet. He had received favorable work reviews during that time. His work duty consisted mainly of manually lifting and transferring pans of frozen fish from a plate freezer to a moving conveyor belt. The pans of fish weigh between 50 and 75 pounds each. This was often done while the ship was rolling, making balance an ongoing issue. There were no handrails or stable areas on which to lean, so Mr. Ili had fallen a few times over the years during unpredictable seas. Typically, Mr. Ili would take a wide stance, adjusting foot position as needed to compensate for the rolling of the ship.

]]> American Seafoods required Mr. Ili to do this work for 16-hour shifts, seven days a week, for months at a time without days off, taking short rest and meal breaks every four hours. He had previously complained about the long shifts and his resulting fatigue to ASC, but was required to continue to work the shifts or be fired.

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.
_______________________
1 “Sleep and Sleeplessness of Fishermen on Rotating Schedules.” Gander P., van den Berg M., Signal L. Chronobiology International (April 25, 2008) 389-98.

Seaman’s Right to Maintenance and Cure Is Not Subject to Employer’s Demand for Independent Medical Exam

2011-12-20T18:14:30Z

In March of 2011, in Tuyen Thanh Mai v. American Seafoods Company, LLC, the Washington State Court of Appeals upheld the ruling that American Seafoods Company (ASC) did not have the right to deny seaman Tuyen Thanh Mai maintenance and cure when she did not agree to ASC’s demand for an independent medical examination (IME) prior to her knee replacement surgery. The Court also held that Mai is entitled not only to the maintenance and cure that ASC had withheld from her, but also to compensatory damages and attorney fees, sending a strong message to employers that maintenance and cure are fundamental rights not to be denied a seaman.

]]> In March of 2011, in Tuyen Thanh Mai v. American Seafoods Company, LLC, the Washington State Court of Appeals upheld the ruling that American Seafoods Company (ASC) did not have the right to deny seaman Tuyen Thanh Mai maintenance and cure when she did not agree to ASC’s demand for an independent medical examination (IME) prior to her knee replacement surgery. The Court also held that Mai is entitled not only to the maintenance and cure that ASC had withheld from her, but also to compensatory damages and attorney fees, sending a strong message to employers that maintenance and cure are fundamental rights not to be denied a seaman.

Mai was employed on the F/T NORTHERN HAWK in 2005 when her left knee was hit by a 40-pound box of frozen seafood which fell off a misaligned conveyor belt. She had a history of knee trouble, and this new injury exacerbated her condition. In late 2006, her doctor prescribed an eventual total knee replacement. ASC demanded an IME, which Mai declined to attend, given her well-documented medical history. ASC stopped her maintenance and cure payments, their reasoning being that Mai had been delaying surgery, that knee replacement was expensive and required another opinion, and that ASC was going to use the IME opinion as preparation for possible litigation.

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.

One Man Missing After Oregon Crab Boat Capsizes

2011-12-19T20:56:20Z

Last week the F/V RANDI capsized near the entrance to Coos Bay. Three men were aboard the boat, which was reportedly loaded with gear in anticipation of the opening of the dungeness crab season. Jim Peterson of Coos Bay was reportedly in the wheel house of the vessel when the capsizing occurred. Two other deckhands were saved, but Peterson was not found. The Coast Guard is investigating the cause of the accident. The Washington and Oregon dungeness crab fishery remains one of the most deadly and dangerous fisheries in the world.

Who Pays Seaman's Attorney's Fee When Employer Refuses Medical Treatment?

2011-10-04T18:03:05Z

The usual rule in litigation is that each party pays its own attorney’s fee. It’s called the “American Rule.” There are exceptions to this rule, however. One such exception has to do with maintenance and medical bills of a seaman who is injured while working. In a case pending in front of the Washington State Supreme Court, a case being handled by Beard Stacey & Jacobsen, LLP, all sorts of issues regarding an attorney’s fee award are being considered when the employer fails to pay maintenance and cure. Maintenance and cure is a fundamental right to each seaman who has been injured while in the vessel’s service. The OSCEOLA, 189 U.S. 158, 175, 23 S. Ct. 483, 47 L. Ed. 760 (1903); Vaughan v. Atkinson, 369 U.S. 527, 532, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962). This is a no-fault obligation that must be paid. Some employers, however, refuse to fulfill their obligation and willfully withhold maintenance and cure. The pending Washington State Supreme Court case, Clausen v. Icicle Seafoods, Inc., addresses what remedies are available to the seaman when the employer fails to fulfill his or her obligation to maintenance and cure.

]]> Paying attorney fees is nothing new in maritime law. Refusing to pay a seaman’s maintenance and cure is an action where the court regularly orders the wrongful party to pay attorney fees. The ability to recover attorney fees for this refusal is established by Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997, 8 L.Ed.2d 88 (1962). At its core, the Court’s decision in Vaughan is to allow seamen wrongfully denied maintenance and cure to recover attorney fees and is designed to make the injured seaman “whole” again. In this case, Vaughan “was forced to hire a lawyer and go to court to get what was plainly owed to him under laws that are centuries old.” 369 U.S. at 531; Terra West Townhomes, L.L.C. v. Stu Henkel Realty, 996 P.2d 866, 873 (Mont. 2000). This willful denial of maintenance and cure constitutes the bad faith exception to the American Rule, which is a remedy “to compensate a party who, through no fault of [his or] her own, was forced to hire an attorney….” Hutto v. Finney, 437 U.S. 678, 689 n.14, 98 S. Ct. 2565, 57 L.Ed.2d 522 (1978).

Legally speaking, attorney fees are classified as compensatory principles as opposed to punitive damages. This is a very important distinction because the amount of punitive damages one can recover is related to the amount of awarded compensatory damages. Numerous federal courts have concurred with Vaughan, holding that fees under the bad faith exception rest on compensatory issues. Sierra Club v. U.S. Army Corps of Engineers, 776 F.2d 383, 389-90 (2nd Cir. 1985), cert. denied, 475 U.S. 1084 (1986). The United States Supreme Court agreed in Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S. Ct. 1404, 18 L.Ed.2d 475 (1967). Such classification attempts to dissuade employers from withholding maintenance and cure as well as increase potential awards for seamen’s pain and inconvenience.

Furthermore, both federal and Washington courts have confirmed that maintenance-and-cure-based attorney fees are equity-based. Paul citing Vaughan, 106 Wn. App. 406, 426 & n.84, 24 P.3d 447; Id. At 37, 904 P.2d at 737. Very similar to the bad faith exception, this equity basis helps both dissuade unnecessary disputes and delays in obligations. This distinction is significant because, as the court held in Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 367, 617 P.2d 704, 709 (1980), “trials court[s] [have] wide discretion in cases involving both legal and equitable issues, to allow a jury [trial] on some, none, or all issues presented.” The Ninth Circuit Court of Appeals added “[w]here a court of equity assumes jurisdiction because the complaint requires equitable relief, the court has power to award damages incident to the complaint.” United States v. Martinson, 809 F.2d 1364, 1367-68 (9th Cir. 1987).

The law offices of Beard Stacey & Jacobsen, LLP is dedicated to ensuring you don’t have to pay attorney fees brought on by unnecessary actions by employers. In a recent case involving a seaman who was wrongfully denied his maintenance and cure, the jury found in favor of the seaman after a two-week trial. The seaman, Dana Clausen, was awarded $453,000 in compensatory damages, as well as $1.3 million in punitive damages from Icicle Seafoods, Inc. Based on Icicle’s willful and wanton denial of Clausen’s right to maintenance and cure, the court ordered Icicle to pay the attorney fees and costs, totaling $387,558, which resulted from this unnecessary dispute. This ensured Clausen did not have to pay any unnecessary attorney fees and will dissuade employers in the future from withholding maintenance and cure. If you have been denied your right of maintenance and cure or have been injured while in the service of a vessel, please call the law offices of Beard Stacey & Jacobsen, LLP at (206) 282-3100 or visit our website at www.maritimelawyer.us.

Expanding Seamen’s Rights By Pursuing Punitive Damages

2011-10-04T17:51:04Z

A pending case in the Washington State Supreme Court is one of the first in the nation to deal with when and how much in punitive damages can be awarded. Punitive damages are awarded to punish bad behavior. The case deals with one of a seaman’s fundamental rights: the right to maintenance and cure. Maintenance and cure are traditional remedies under maritime law. “Maintenance” is the daily payment to cover certain living expenses expected while on a vessel; “cure” refers to the payment of certain medical bills. They are designed to provide a seaman with food, lodging and medical care when one becomes sick or injured in the vessel’s service. The OSCEOLA, 189 U.S. 158, 175, 23 S. Ct. 483, 47 L. Ed. 760 (1903); Vaughan v. Atkinson, 369 U.S. 527, 532, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962). Maintenance and cure are no-fault obligations employers must fulfill so long as the injury occurred while in the ship’s service and until the seaman reaches maximum cure. West v. Midland Enters., 227 F.3d 613, 616 (6th Cir. 2000), Gardiner v. Sea-Land Serv., Inc., 786 F. 2d 943, 945-46 (9th Cir. 1986).

]]> There are times when employers will deny a seaman’s most basic right. This denial requires legal action, and the courts have answered. While there were existing penalties for denying a seaman’s right to maintenance and cure, the courts have recently increased the potential remedy for failure to fulfill one’s obligation as an employer. Two years ago, the United States Supreme Court ruled that a maritime employer’s “willful and wanton” disregard of its maintenance and cure obligations may also entitle a seaman to punitive damages, along with recovering the properly owned amount. Atlantic Sounding v. Townsend, 557 U.S. , 129 Ct. 2561, 174 L. Ed. 2d 382 (2009). Punitive damages have been available in a number of maritime situations, starting as early at a 1818 U.S. Supreme Court case The Amiable Nancy, 16 U.S. 546, 558, 4 L.Ed. 456 (1818) where the court recognized that “exemplary damages” could be given in maritime “wrongdoers.” However it wasn’t until Townsend that the Court decided to award punitive damages to seamen wrongfully denied maintenance and cure. Writing for the majority, Justice Clarence Thomas considered the fundamental obligation of the employer and concluded that punitive damages are available for tortuous acts of a “particularly egregious nature.” Id. At 2567.

The pending Washington Supreme Court case is the first case in Washington where a seaman, Dana Clausen, recovered punitive damages for an employer’s willful and wanton denial of maintenance and cure. The law offices of Beard Stacey & Jacobsen, LLP represented Clausen against Icicle Seafoods, Inc., which did everything it could to deny his maintenance and cure. The jury determined that Icicle not only unreasonably withheld maintenance and cure from Clausen, it was callous and indifferent or willful and wonton in its withholdings. Because of this, Clausen was awarded $1.3 million in punitive damages. The case has been appealed to the Washington State Supreme Court and has significant potential to dissuade future employers from withholding a seaman’s fundamental right to maintenance and cure. Courts around the country will look to this case to see the state’s implementation of Townsend. Icicle has stipulated that the seaman is entitled to punitive damages; however it is attempting to limit and minimize the amount that can be recovered.

The law offices of Beard Stacey & Jacobsen, LLP are working hard to ensure all seamen will recover the damages to which they are entitled. Although the Clausen case deals with punitive damages for the wrongful denial of maintenance and medical bills, we are pursuing punitive damages in other cases involving wrongful or reckless conduct. The lawyers at Beard Stacey & Jacobsen, LLP, in fact, believe that punitive damages should be available in cases where the employer violates OSHA or Coast Guard regulations. For instance, some employers have not implemented a “lock-out, tag-out” policy when machinery is being repaired. A violation of this OSHA regulation may support a claim for punitive damages. These types of cases are next up in the battle for seamen’s rights.

The law offices of Beard, Stacey & Jacobsen are proud to represent Clausen in such a monumental case and are confident the rights of the seaman will withstand the appeal. If you have been denied your right to maintenance and cure or have been injured while working aboard a vessel, give the lawyers at Beard Stacey & Jacobsen, LLP a call for a free consultation at (206) 282-3100 or visit our website at www.maritimelawyer.us.

Crewman Seriously Injured On Alaska Fishing Vessel KITTIWAKE

2011-08-23T18:40:45Z

A nineteen year old crewman has reportedly been seriously injured while working on the deck of the 38-foot fishing vessel KITTIWAKE. The accident happened on August 18th when a line under tension snapped, striking Daniel Cornelius in the head, causing facial injuries and knocking him unconscious. The United States Coast Guard airlifted Cornelius from the vessel. He was transported to Kodiak Island for emergency medical treatment and evaluation.

]]> Serious accidents continue to happen at an alarming rate on Alaska fishing vessels. In far too many cases, deckhands suffer serious and permanent injuries. Under Federal Maritime law, injured fishermen are entitled to compensation for injuries under the Jones Act 46 USC § 30104 and the general maritime law.

Serious injury accidents impact the whole family. Recently, the United States District Court for the Western District of Washington has ruled that family members of seriously injured crewmen have their own claims against the vessel and employer for loss of consortium. The new case is Barrette v. Jubilee Fisheries, USDC W.D. Wash. Cause No. C10-01206. The Barrette case followed the recent Supreme Court of the United States decision in Atlantic Soundings v. Townsend, 129 S.Ct. 2561 (2009). Some State courts have interpreted the Atlantic Sounding case to allow for punitive damages in unseaworthiness and Jones Act negligence cases. See Nes v. Sea Warrior Inc., King County Cause No. 09-2-05771-1SEA (2010); and Wagner v. Knoa Blue Water Farms, USDC Hawaii Cause No. 09-00600 (2010).

Coast Guard Responds To Mayday Call From TWO SONS Off San Francisco

2011-07-27T00:20:25Z

The Coast Guard in San Francisco received a distress call from the crew of the 31-foot commercial fishing vessel TWO SONS, Wednesday, July 20, about eight miles west of the Golden Gate Bridge. Reports informed the Coast Guard that the vessel was taking on water with two people on board. The boat operator reported that the rate of flooding far exceeded the rate at which the crew could discharge the water from the vessel using the onboard dewatering equipment.

]]> Sector San Francisco launched a helicopter rescue crew, a 47-foot Motor Lifeboat, and the Coast Guard Cutter TERN to assist the distressed fishing vessel. The TERN arrived on the scene and placed two of their own crewmembers onboard the TWO SONS, along with more dewatering equipment. The crewmembers were able to get one dewatering pump started, and succeeded in completely dewatering the vessel.

Boaters should not hesitate to call for help in times of need or danger, and ought to have safety equipment such as life jackets, flares, and safety whistles that can help expedite Coast Guard response in the event of an emergency.

Injured Fisherman Hospitalized For Arm Laceration Aboard CAPTAIN MARK In Massachusetts

2011-07-27T00:14:02Z

The Coast Guard in Boston was notified Tuesday, July 12 by the crew of the stern trawler CAPTAIN MARK that a crewman required assistance for an arm laceration 54 miles east of Merrimack River. A Coast Guard Station Gloucester rescue boat and crew responded to the call.

Medical personnel assessed the injured crewman, then transferred him to the Coast Guard rescue boat where he was safely taken to Gloucester Harbor. The crew was met at shore by local emergency medical services for transport to a hospital. Due to the laceration and blood loss, officials were worried that the crewman might lose the limb. Published reports do not indicate what caused the laceration, and the fisherman’s condition at this time is unknown.

Five Rescued From Sinking PENNY V Off Sanibel Island, Florida

2011-07-21T19:43:32Z

Watchstanders at Coast Guard Sector St. Petersburg received an alert from an emergency beacon registered to the PENNY V Friday, July 8, after the 68-foot fishing vessel began to take on water west of Sanibel Island, FL. The Coast Guard diverted the crew of the 210-foot Coast Guard Cutter RESOLUTE to the scene to assist the distressed crew.

]]> Once on the scene, the Coast Guard rescue crew assisted with dewatering pumps and flooding control, allowing the PENNY V to get underway under its own power. The Coast Guard then escorted the crew of the PENNY V back to home port in Fort Myers, FL.

All five crewmen of the PENNY V were in good condition. Coast Guard officials took the opportunity to stress the importance of having an Emergency Position-Indicating Radio Beacon on board.

One Dead, One Seriously Injured After HIGH LIFE Capsizes Off Boston Shore

2011-07-21T19:38:44Z

One man is dead and another is seriously injured after the vessel they were traveling in capsized Saturday, July 16, in outer Boston Harbor, Mass. According to State Police spokesman David Procopio, the 30-foot vessel HIGH LIFE “broke apart and capsized for reasons still under investigation,” launching both passengers into the water. Neither passenger was wearing a life jacket. The boaters were identified as Michael Spirito, 58, and Robert Fox, 63.

Coast Guard Sector Boston was notified of the capsizing around 6:15 Saturday evening, and responded to the call immediately, along with the Boston Fire Department, the State Police, and the Environmental Police. The victims, who had severe chest and head injuries, were pulled from the water and taken to shore where emergency medical services were waiting. Spirito had been pronounced dead, and Fox was rushed to a Boston area hospital by a helicopter crew for his life-threatening injuries. Fox was listed in critical condition as of Monday, July 18.

Three Injured In Capsizing Of LOONEY TUNA In Southwest Pass

2011-07-20T01:10:22Z

Coast Guard Sector New Orleans watchstanders received notification Tuesday July 12, that the 36-foot fishing vessel LOONEY TUNA was taking on water and had capsized. Three of the six on board reportedly suffered injuries. The Coast Guard launched two helicopter rescue crews and one boat crew to the scene, where they successfully hoisted the three injured fishermen and transported them to a nearby hospital. The rescue boat and crew safely transported the other three fishermen to shore, where emergency medical services awaited their arrival.

The Coast Guard stresses the importance of having marine-band radios, emergency position indicating radio beacons, life jackets and signaling devices on board. Having this sort of equipment on board allowed the crew of the LOONEY TUNA to make a call requesting help.

Dangers of Cold Water

2011-07-20T01:08:04Z

Despite warming air temperatures in the summer months, summer water temperatures in Washington State average just 55 degrees. These low water temperatures carry a high risk of hypothermia and drowning. As the human body enters cold water, it becomes shocked. The body instinctively gasps for air, increasing the danger of swallowing too much water which may lead to drowning. Blood pressure and heart rate also greatly increase as the body is shocked. This can trigger panic, hyperventilation and cardiac arrest. Furthermore, in this state of shock, the human body naturally takes blood flow from the arms and legs and puts it to the core to warm the center of the body, which poses risks of muscle failure and inability to swim. The Coast Guard reminds all boaters of these very real risks, and urges boaters to take caution during the busiest months on the water. It is essential to realize that the dangers of the cold water exist even in the otherwise warm weather.