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March 29, 2010 – The Supreme Court of the United States has rejected a petition to decide whether or not the spouses of non seamen injured on the high seas may make a claim for loss of consortium. Denying a writ of certiorari, the Court let stand the Eighth Circuit Federal Appellate Court’s decision that the General Maritime Law does not allow recovery of loss-of-consortium damages for injuries to non seamen outside of state territorial waters. The Supreme Court did not issue a final decision, it simply chose not to accept the issue for review at this time. The Eighth Circuit noted that spouses of Jones Act seamen are not permitted to collect such damages. The Eighth Circuit’s decision, Doyle v. Graske, 579 F3d 898 (2009), is in agreement with the Fifth and Ninth Circuit Court of Appeals. In many cases, spouses of non seamen injured within State territorial waters, (3 miles), may recover for loss of consortium damages.

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In a landmark decision, the Washington State Supreme Court has reinstated an 8 million dollar default judgment entered in favor of a car crash victim seriously injured while a passenger in a Hyundai Accent. The Washington State Supreme Court stated that trial courts need not tolerate deliberate and willful discovery abuse and that in appropriate cases, entry of judgment in favor of the opposing party may be warranted.

Court Rules throughout the nation permit parties in litigation to serve upon opposing parties requests to produce information and records relevant to the lawsuit. This discovery process is central to our American System of justice. In this case, the plaintiff Jesse Magana was rendered a paraplegic in the accident as the result of an alleged negligent design of the car passenger seat which collapsed in the accident. In 2000 and 2001, Magana submitted discovery requests to Hyundai asking for Hyundai to produce documents relating to prior seat back failures in Hyundai products.

Hyundai objected and provided evasive answers to Magana discovery requests seeking information about seat back failures in Hyundai cars. After years of litigation, including a first trial and appeal, Magana moved for an order to compel full and complete responses by Hyundai to the discovery request. Hyundai opposed the motion to produce the prior seat back failure documents claiming it was burdensome and would not lead to discovery of admissible evidence. The trial court rejected Hyundai’s arguments and agreed with Magana and ordered Hyundai to produce the documents. After this order was issued in November, 2005, Hyundai then disclosed that there had been nine other instances of known seat back failures. This disclosure was made just two weeks before Magana’s second trial was to commence.

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Fisherman from outside of the State of Alaska who paid “out of state fees” for commercial fishing licenses and permits from 1984 to 2004 will receive up to $ 70 million dollars in compensation. As the result of a class action lawsuit filed in 1984, the Alaska Court has ruled that the State of Alaska must reimburse out of state fisherman for excessive charges. The Court held that charging the non-Alaska fisherman a fee differential violated the privileges and immunities clause of the United States Constitution. Much of the $70 million dollars is the result of the 11% compound interest rate that was set on the damages. Prior to 2004, the State of Alaska had customarily charged non-residents as much as three times more for fishing permits and licenses than it charged Alaska residents. The refunds must be approved by the Alaska State legislature but are anticipated to be paid out to claimants beginning in 2010. The compensation plan is complicated and not all non-residents will receive compensation. Issues still remain over reasonable attorneys fees and the State of Alaska’s contribution to those legal fees.

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November 25, 2009

Reversing a Seattle District Court decision, the Ninth Circuit Court of Appeals has held that an injured Alaska fish processor has presented sufficient evidence that his case must go to trial.

Samson Ili brought a Jones Act injury claim against American Seafoods based upon the theory that it was negligent to require crewmen to work 16 hours a day, seven days a week, for months at a time. Ili was injured at the end of his shift, after months of work, while lifting 70-lb bags of product. The vessel reportedly took a roll and Ili lost his balance while handling the heavy bag, resulting in his injury. The Ninth Circuit ruled that a reasonable jury could find that these work conditions were a breach of American Seafood’s duty to provide a safe work environment. The Court held that even if the 16-hour-day work shift were customary in the fishing industry, that this does not establish a lack of negligence. The Court further noted that the long hours could be determined to be evidence that the American Seafoods vessel, American Triumph, was under-manned at the time of the crewman’s injury. The case will now be returned to the District Court where a jury will determine whether or not American Seafoods was negligent and their vessel unseaworthy.

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A Washington State King County jury has awarded total damages in the amount of $1.6 million dollars to a crewman injured on an Alaska fish processor owned by Icicle Seafoods. $1.3 million dollars of the award was for punitive damages for Icicles’ wilful and wanton failure to pay maintenance and cure benefits as required by Federal law. Mr. Clausen, the injured crewman, was represented by Jim Jacobsen of the Seattle based maritime injury law firm of Beard Stacey & Jacobsen.

In February of 2006, Dana Clausen, a 55 year old Louisiana fisherman suffered back injuries in a lifting accident aboard the fish processing barge BERING STAR. Icicle disputed Clausen’s right to maintenance and cure. During the course of trial Icicle was ordered to produce a secret medical report they had commissioned relating to Clausen’s need for further treatment. The physician had reviewed Clausen’s records had recommended further treatment for Clausen and noted the need for possible surgery in the future. Icicle ignored the report, and subsequently commissioned a second medical report from a different physician indicating that Clausen needed no further treatment.

Under Federal maritime law, employers owe their crewman a good faith duty to administer maintenance and cure benefits. All doubts as to entitlements of benefits are to be resolved in favor of the injured seaman. Where there is conflicting medical evidence, the issue should be resolved in favor of the injured seaman. The King County jury found that Icicle was unreasonable in their failure to pay Clausen maintenance and cure and that Icicle’s conduct was willful and wanton.

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Erin Reiman has been charged with murder of fisherman John Adkins. The crewmen were in Ilwaco aboard the F/V TIGER on July 5, 2009 when the murder is alleged to have taken place. According to information contained in the Court files, the murder happened as follows: Reiman and Adkins had recently become partners in the fishing vessel and brought the vessel to Ilwaco for repairs. Adkins and another crewman, Walter Bremmer, had been visiting bars in Ilwaco and thereafter, Adkins returned to the vessel. When Bremmer returned to the vessel, he witnessed Reiman and Adkins fighting. Reiman punched Adkins in the face and allegedly banged Adkins head into a window and threw him down the vessel’s stairs. Reiman continued to beat Adkins, he then wrapped an extension cord around Adkins’ neck and strangled him to death. Bremmer claims Reiman threatened to kill him too and ordered Bremmer to help him clean up the murder scene. The two men then put Adkins in a sleeping which they tied up with the extension cord. They stored Adkins’ body in the engine room and pretended to search for him the following day. The next day the men left port and about three miles off shore, dumped Adkins’ body overboard, weighed down with fishing gear. The murder was investigated by the Oregon State Police department and the Long Beach Police department. It appears that Adkins will stand trial on the second degree murder charges in Pacific County, Washington.

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The Coast Guard has reported that it has released its final report of the sinking of the passenger vessel the LADY D. The LADY D capsized in March, 2004, killing five people in the Patapsco River in Baltimore. The LADY D was a small pontoon water vessel.

The Coast Guard cites the master’s decision to depart the dock in an approaching visible squall line. The Coast Guard also states that the vessel capsized as a combination of several factors which created an overturning motion which the vessel could not recover.

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The United States District Court for the State of Massachusetts has awarded a sailor $150,000 in damages for past and future pain and suffering, as well as loss of the enjoyment of life, after losing her full sense of smell and taste following a two-vessel collision.

39-year-old Julianne Marie Evans took part in a sailing competition when she sustained her injury. The injury occurred while Evans’ vessel was approaching a buoy alongside another vessel, controlled by Donncha Kiely. In attempting to turn her vessel around the buoy, Kiely swung her boom from the port side to starboard side of her vessel. Unfortunately, Evans was next to the starboard aft corner of Kiely’s vessel. In swinging her boom from port to starboard, Kiely made her boom strike Evans in the neck, causing her to fall forward into the cockpit. Evans went in and out of consciousness for approximately ten minutes.

Evans then visited different doctors to assess her injuries. As these doctors appointments continued, Evans began to lose her sense of smell and taste. She visited Dr. Norman Mann of the University of Connecticut, where she underwent a series of tests related to taste and smell. After a three day test period she received a diagnosis of a permanent loss of taste and smell.

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The U.S. District Court for the Southern District of Florida ruled that relatives who observed the drowning of a family member had no claim for the negligent infliction of emotional distress under general maritime law because they were outside the zone of danger.

Plaintiffs brought a wrongful death and related claims against a cruise line and snorkel company for the drowning of Lois Gales, Plaintiffs’ mother, during a snorkel trip in December 2006. Gales had drifted away from the snorkeling group because of bad weather and was in distress. One of Gales’ daughters was able to locate Gales and pull her to the boat. Other guests attempted to resuscitate Gales while both of Gales’ daughters watched. These attempts, however, was unsuccessful.

Plaintiffs brought action against both the cruise liner and the snorkeling company seeking, among other things, damages for defendants’ negligent infliction of emotional distress. There are a variety of limiting tests for assessing claims of negligent infliction of emotional distress on the two daughters. The three most important tests are: the physical impact test, the zone of danger test, and the relative bystander test. The court found that plaintiffs satisfied the relative bystander test because “plaintiffs were located near the scene of the accident …the shock resulted from a direct emotional impact upon plaintiffs …and the plaintiffs were closely related to victim.” Plaintiffs, however, had more difficulty satisfying the danger zone test. The precedent is that “those within the zone of danger can recover for fright, and those outside of it cannot.” The Court ruled that, because the daughters were in the safety of a boat, they were outside the danger zone and therefore cannot recover for fright. Plaintiffs’ claim for negligent infliction of emotional distress was therefore dismissed.

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A seaman injured in a two vessel collision was able to have a Louisiana Court invalidate his release clause and therefore bring the fishing company to trial after the vessel’s doctor’s diagnosis was incorrect.

Clifton Lewis was a mate aboard one of the vessels in the collision. Upon impact, he fell against a table where he hit his left side. Lewis was knocked down again by fellow seamen “stampeding for the exit.” Lewis complained of pain shortly thereafter and went ashore to be looked at by an orthopedic surgeon the fishing company hired. The doctor, Dr. Duval, concluded that Lewis sustained “no serious injuries, only some soreness.”

The fishing company, Omega, then hired an attorney, Alan Breaud, to settle potential injury claims that would arise from the collision. Breaud met with Lewis to explain his rights and offer a release of potential claims for $500. Lewis accepted this offer based on Dr. Duval’s assessment that his leg and side “won’t give Lewis any permanent problems.”

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