Is There a Correlation Between Long Shifts, Too Few Crewmembers, and Unseaworthiness?
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 an 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 on board 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, PLLC, 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.