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Articles Posted in Legal Cases & Concerns

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Alaska Troopers have cited two crewmembers of the F/V ALASKA OCEAN for failure to obtain crewmember licenses. The citations were issued in Dutch Harbor, Alaska, and bail of $260 was set for each of the crewmembers. The citations are pending in Unalaska District Court. One crewmember resides in Washington and the other crewmember is from Massachusetts. In most instances, crewmembers who are not strictly processors and are working as deckhands must get a crewmember license.

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A Washington State King County Court Judge has entered a 1.12 million dollar verdict in favor of an injured Bristol Bay fisherman. The 50-year old fisherman, Ronald Lanphere, injured his knee in 2008 when his rain gear became entangled in a rotating shaft of the vessel’s engine room. Lanphere had two knee surgeries as a result of the accident and may require a knee replacement in the future.
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In many cases involving injured fishermen, during litigation to obtain compensation for the crewman under the Jones Act, the fishing company attempts to block and obstruct the crewman from getting information necessary to prepare his case for trial.

A Washington State Superior Court Judge in King County has recently ordered an Alaska fishing company to designate a witness to testify regarding their comparative fault defense. The fishing company had refused to designate a witness for the corporation, claiming the evidence on which they based their comparative fault argument was attorney work product. In essence what the fishing company was attempting to do was hide behind the corporate structure – refusing to articulate a position on comparative fault in discovery, only to have its lawyer make the argument at trial. In ordering the company to produce the witness, the Court rejected the fishing company’s argument, noting that it would defeat the discovery process. Requiring a witness to be produced under Rule 30(b)(6) is not necessarily objectionable merely because the identified subjects about which the witness is to testify involve an opinion or contention that relates to fact or application of law to fact. Beard Stacey & Jacobsen, PLLC represented the injured crewman in this case, Masterson v. Unimak Vessel, LLC, Superior Court for King County Cause No. 09-2-30167-SEA. This case is set for jury trial in January, 2011.

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As a result of the recent discussions in Congress concerning the repeal of the Jones Act, the U.S. Navy and the U.S. Navy League officially announced their strong opposition to its repeal. Their stance was promptly lauded by the Maritime Cabotage Task Force (MCTF), a national coalition that represents U.S. fleets engaged in domestic maritime commerce. The U.S. Navy league is a nonprofit organization whose mission is to educate the American people about the enduring importance of sea power to a maritime nation.
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A claim for punitive damages made by a commercial diver based upon the legal theory of unseaworthiness has withstood legal challenge in the United States District Court for Hawaii. The Court found as a matter of law that punitive damages may be sought in cases involving unseaworthiness. The Court based its holding on the United States Supreme Court’s recent decision in Atlantic Soundings Co. v. Townsend, finding that the Ninth Circuit’s previous holding in Evich v. Morris permitting punitive damages for unseaworthiness remains intact.

Prior to the Supreme Court’s decision in Atlantic Soundings v. Townsend, the majority of the Courts had expanded the Supreme Court’s decision in Miles v. Apex Marine to prohibit punitive damages in Jones Act and unseaworthiness cases. Based upon the Supreme Court’s rationale and analysis in Atlantic Soundings allowing punitive damages in maintenance and cure cases, the Hawaii District Court rejected the vessel owner’s argument that the Supreme Court’s holding in Miles v. Apex Marine prohibited punitive damages in unseaworthiness claims. In a detailed analysis, the District Court Judge found that there was no statutory preemption of punitive damages in a general maritime law claim for unseaworthiness.

Citing Evich v. Morris with favor, the District Court noted that punitive damages serve the purpose of punishing a defendant, teaching him to not do it again, and deterring others from following his example. To recover punitive damages, a seaman must show that the vessel owner’s conduct is willful and wanton.

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Superior Court Judge Richard Eddie has held that a seaman’s wrongful death claim involving claims for punitive damages for unseaworthiness and Jones Act negligence will proceed to trial on the merits. The vessel owner and employer’s motion to dismiss the seaman’s claim for punitive damages was rejected. Following the Supreme Court’s recent decision in Atlantic Soundings v. Townsend, Judge Eddie found as a matter of law that claims for punitive damages are available under both the Jones Act and under the unseaworthiness doctrine.

The case, Nes v. Sea Warrior, King County Cause No. 09-2-05771-1SEA, is thought to be the first in Washington State to reestablish a seaman’s right to punitive damages. The Ninth Circuit had previously recognized punitive damages for seamen in cases such as Evich v. Moriss, but subsequent to the Supreme Court’s decision in Miles v. Apex Marine, most Courts had prohibited punitive damages in seaman injury and wrongful death cases. However, in 2009 the Supreme Court decided Atlantic Soundings v. Townsend allowed punitive damages in maintenance and cure cases. In cases post Atlantic Soundings, punitive damages may not be available in Death On the High Seas Act cases. However, that no longer means that punitive damages will not be granted in appropriate negligence and unseaworthy cases involving willful and wanton conduct.

Late in 2009 a King County jury awarded a seaman 1.3 million dollars in punitive damages for willful failure to pay maintenance and cure. That case, Clausen v. Icicle Seafoods, is now on appeal and will set legal precedent in Washington State about how punitive damages may be calculated and awarded.

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For the past ten years, maritime workers aboard ships and fishing vessels at sea have been able to cheaply stay in contact with their wives, children and girlfriends, and even run a shoreside business, utilizing the ship’s e-mail system. There has never been much privacy on a ship at sea, but most crewmen think their ship-to-shore e-mails to their wives and girlfriends are confidential. Few crewmen realize that those e-mails on company provided computers and accounts may not be confidential, even though the crewman is using a private password. A recent United States Supreme Court decision, City of Ontario v. Jeff Quon, et al., 130 S.Ct. 2366, suggests that employees utilizing company owned computers may not have a reasonable expectation of privacy that their e-mails will not be read by their employer.
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Wesley Keller, a member of the Alaska State House of Representatives, and Vice Chair of the Alaska House Fisheries Special Committee, was cited June 11, 2010, for an illegal sport fishing violation. Keller was fishing with two poles near the entrance to Halibut Cove in Kachemak Bay. He was issued a $110 citation for the violation. Keller, who is a republican from Wasilla, was elected to the Alaska House of Representatives in 2008.

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Under the Jones Act, the evidentiary proof a seaman needs to present to establish a causal connection between his employer’s negligence and his injury is very slight. A Louisiana Appellate Court has reaffirmed this standard in Bancroft v. Mitchell Offshore Marine, 2010 WL 198219 (2010 La. App. 3 Cir.). The crewman in Bancroft claimed in part that he aggravated a preexisting back injury in a collision between his vessel and another vessel. The crewman had a long history of medical treatment for back pain prior to the collision. After the collision, the crewman had a low back fusion. Based upon the evidence presented at trial, the Court found there was no connection between the shipboard accident and the need for subsequent surgery.

Although, at first blush, Bancroft appears to be a victory for the defense, the precedent set by the Court reaffirms long standing legal precedent relating to a seaman’s burden of proof on causation. In reviewing the case, the Louisiana Appellate Court unequivocally declared the legal principle that whatever injury the seaman suffered, including an aggravation of a preexisting injury, needed only to be established by “slight” evidence. This causal relationship has been frequently referred to as the “featherweight” burden of proof as to causation in a Jones Act negligence case. The Appellate Court in Banccroft was divided as to whether or not the injured seaman had proven the necessary causal link, and the trial court seems to have rejected the injured seaman’s evidence of an increase in his symptoms and impaired working ability. Therefore, the verdict was affirmed after increasing the award for pain and suffering for the back injury for increased pain caused by the collision.

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Yesterday, the Coast Guard issued an order requiring the cargo vessel STX DAISY to remain at anchor in Port Angeles, Washington. During a routine Coast Guard boarding of the vessel in the Strait of Juan de Fuca, the Coast Guard suspected the vessel’s Master showed signs of intoxication. The 587 Panamanian flagged vessel was in route from China to Olympia to load timber. The U.S. Attorney’s office is investigating the incident for possible violation of United States laws.

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