Articles Posted in Legal Cases & Concerns

Congress is considering legislation holding the fishing industry to a significantly higher safety standard in vessel construction in an effort to decrease the fatalities suffered at sea. This bill would require training of all skippers and mandate Coast Guard inspections of vessels.

This proposed bill has been under development for over two years and is championed by Senators Olympia Snowe R-Maine and Maria Cantwell D-Wash, chair of the Senate subcommittee with oversight over the Coast Guard and fisheries, as well as Representative James Oberstar D-Minn, chair of the House Transportation and Infrastructure Committee.

This legislation results from the significant dangers of and deaths from working at sea. While there was been a substantial decrease in commercial fishing fatalities in recent years, fishermen are 25 times more likely to die on the job than the national average for occupational deaths. We were reminded of the danger of commercial fishing when the Seattle-based vessels Alaska Ranger and Katmai sank in the Bearing Sea last year, killing 12 fishermen.

On June 25, 2009, the United States Supreme Court ruled in the seaman’s favor! The High Court decided that seamen are entitled, as a matter of general maritime law, to seek punitive damages for their employers’ willful and wanton disregard of its maintenance and cure obligation. Punitive damages are now permitted in cases where the employer acts in bad faith. Punitive damages are designed to punish the employer for bad faith treatment of its employees regarding medical payments.

It is a too frequent story when an employer refuses to pay an injured seaman’s entitlements of maintenance and cure. After being injured on the job, seamen are in need of a consistent income and medical treatment. It was this concern that led to the creation of maintenance and cure, which is a vessel owner’s obligation to provide food, lodging, and medical services to a seaman injured aboard a vessel. While suffering from an injury, both a seaman and his or her family are often dependant on maintenance and cure payments.

Frequently, unfortunately, vessel owners intentionally withhold maintenance and cure payments from seamen. Before this Supreme Court case, employers were able to withhold such obligatory payments with limited financial penalty, leaving the injured seaman with no income and numerous medical bills. These seamen often have to turn to various high interest loans to pay these bills, a last resort to many.

The Fifth Circuit Court of Appeals recently ruled a seaman may bring a Jones Act case against his or her employer after the three year statute of limitations if the severity and source of the seaman’s injury or illness were not known until well after the action leading to the illness. In this case, Plaintiff Herbert Pretus sued his employer Diamond Offshore Drilling, Inc. after being diagnosed with hypersensitivity pneumonitis and fibrosis of the lungs. The illness arose after Pretus was assigned to clean a rig that was allegedly “wet and moldy” in 1999. Pretus began complaining of “cold-like symptoms,” including a cough, fever, aches, congestion and chest tightness shortly after cleaning the rig. Pretus was given antibiotics and antihistamines and his condition slowly improved as he finished cleaning the rig and left for home. After a few years, Pretus’ symptoms worsened to the point where he had shortness of breath and coughing. Diamond sent Pretus to Dr. James Patterson for an independent examination in March, 2005, where Dr. Patterson diagnosed Pretus with hypersensitivity pneumonitis. Pretus subsequently filed suit against Diamond in September, 2006 under the Jones Act and General Maritime Law.

The Fifth Circuit Court of Appeals ruled Pretus’ three year statute of limitations did not begin until the examination by and diagnosis from Dr. Patterson. The general issue in the case is when Pretus should have discovered his illness, as therefore his cause of action, so as to trigger the running of the three year statute of limitations under the Jones Act. Under the Jones Act, the cause of action accrues when “a plaintiff has had a reasonable opportunity to discover the injury, its cause, and the link between the two.” Diamond cited numerous cases where an unknowingly ill plaintiff was unable to sue the employer because the three year period had passed. Diamond asserted that these cases set the precedent and Pretus’ statute of limitations should not be extended.

The Court focused on three issues to decide Pretus’ claim: first, the severity of the event and the initial symptoms; second, the plaintiff’s correlation of his ultimate injury with the event; and third, plaintiff’s reasonable reliance on the opinions of medical experts. The Court found that Pretus’ description of his initial symptoms as “cold-like,” along with the positive reaction to antibiotics and antihistamines, led Pretus to believe his illness was nothing similar to the severity of the cases that Diamond cited. This discredits the claim that Pretus should have known about the severity of his illness. Upon assessing the second issue, the Court emphasized that Pretus was not suing “based on those initial symptoms,” another sharp distinction between the cases Diamond cited. The Court further denied the existence of a traumatic event and the severity of Pretus’ symptoms prior to his shortness of breath in 2004. The third issue of reliance on medical experts further distinguishes Pretus from the other cases Diamond cited. Pretus diligently sought treatment for his medical problems when the initial symptoms presented themselves in 1999 before successfully receiving treatment. It was only after such treatment was ineffective in 2004 that Pretus sought further medical treatment. After extensive testing, including high resolution CT scans, the physicians were able to properly diagnose Pretus’ illness as “chronic interstitial lung inflammation, permanent fibrosis (scarring) of his long tissue and hypersensitivity pneumonitis.” Dr. Patterson explained that the condition is extremely difficult to diagnose and is commonly misdiagnosed in its early stages. These factors led the Court to rule that the cause of action occurred in 2004 when Pretus received his diagnosis, well within the three year statute of limitations under the Jones Act. Having satisfied all three issues, Pretus was awarded a trial where he brought his claim against Diamond Offshore Drilling, Inc.

The United States Second Circuit Court of Appeals recently ruled that the fee imposed on ferry passengers was unconstitutional under the Commerce Clause and the Tonnage Clause. This case questions the constitutionality of a fee imposed on passengers traveling via private ferry from Bridgeport, Connecticut to Port Jefferson, New York. The Bridgeport Port Authority (BPA) imposed this fee after leasing the dock space from the privately owned ferry company, the plaintiff in this case. The BPA argued that this lease entitled them to charge a fee for passengers making the voyage.

The Court disagreed, however, asserting that this fee was both too high and unconstitutional. First, the Court relied on the “dormant” Commerce Clause jurisprudence, which determines the constitutionality of government imposed fees on individuals engaged in interstate commerce. The Court determined that this clause was designed to make the users of state-provided facilities responsible for a reasonable fee needed for the construction and maintenance of the facility. Ultimately, the Court ruled that the fee imposed by the BPA was not a fair approximation of a ferry passenger’s use of facilities because the BPA sought to maximize profit as oppose to simply pay for the construction and maintenance of the dock.

This fee also violated the Tonnage Clause, which “prohibits…duties to raise general revenues.” The Court used testimony from the BPA’s own expert witness to justify their ruling. During the trial, an expert for the BPA stated that the BPA “act[s] as an incubator for growth of economic activity,” confirming the Court’s belief that the BPA was focused on increasing revenue rather than simply paying for the construction and maintenance of the dock.

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

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

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

Some injured seamen who rely upon maintenance payments for economic support while recovering from injuries, have been dealt a blow by the Ninth Circuit Court of Appeals. In Aguilera v. Fishing Company of Alaska 535 F. 3d 1007 (August 2008) the Court held that a Texas State lien for back child support could be deducted from a seaman’s maintenance payments. The Court reasoned that under Texas’ law, maintenance is “wages”or “disability and workers compensation benefits,” subject to withholding for back child support payments.

When a seaman or fisherman is injured or becomes ill while working aboard a vessel, they are entitled to maintenance under the General Maritime Law. Maintenance is a daily living allowance provided to a crewman while he is recovering from his shipboard injury or illness. Maintenance payments are a minimal living allowance for room and food, and the typical rate is $25-$35 per day until the seaman has reached maximum medical improvement, or the seaman is fit to return to duty. Maintenance payments to injured seamen allow them to survive just above the poverty line, and do not include any living allowance to support the injured crewman’s family.

The Ninth Circuit’s recent ruling in Aguilera v. Fishing Company of Alaska means that an injured seaman, who may be receiving as little as $25 to $35 per day as a living allowance from his employer, may have his maintenance benefits cut in half, with the other half going to DSHS to repay them for back child support obligations.