Boat on the sea
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Many maritime employers require their prospective crewmen to answer a preemployment health questionnaire. These health questionnaires are rarely used in the hiring process and are instead utilized as weapons by maritime employers to attack the seaman’s credibility in cases where the seaman later becomes injured and seeks compensation under the Jones Act or Unseaworthiness Doctrine.

If a seaman fails to disclose a preexisting medical condition in response to a health questionnaire, the employer then attempts to deny the crewman maintenance and cure benefits, arguing that the seaman willfully concealed a preexisting condition. This defense to maintenance and cure claims, based upon willful concealment of preexisting medical conditions when asked to make disclosure in a health questionnaire, can be traced to the Fifth Circuit Court of Appeals decision in McCorpen v. Central Gulf Steamship, 396 F.2d 547 (1968).

McCorpen did not hold that a maritime employer asserting the willful concealment defense could recover maintenance and payments they alleged were wrongfully paid. Nevertheless, some maritime employers have improperly sought to recover the previously paid benefits made to the injured seaman. This intimidation tactic is designed to frighten seamen who have been injured through the negligence of their employer or the unseaworthiness of their vessel into not bringing suit or settling their cases for less than fair compensation.
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AUGUST 30, 2013
Only one of seven crewmen survived the March 24, 2009 sinking of the scallop fishing vessel LADY MARY. The United States Coast Guard has now released their comprehensive report into the sinking of the vessel, concluding that a combination of safety problems contributed to the vessel’s sinking and the crewmen’s deaths.

The Coast Guard determined that sometime in the early morning hours the crew of the LADY MARY removed the lazarette hatch to utilize an electric pump to dewater the lazarette compartment located in the stern of the vessel. Underwater photographs of the sunken vessel showed the lazarette hatch open with a dewatering hose coming out of the transom and discharging over the transom. When the pump was being utilized, the lazarette hatch could not be closed. The Coast Guard concluded that it was probable the LADY MARY’s lazarette flooded through this open hatch, which then allowed water to board the vessel up the transom. Two of the LADY MARY’s four deck scuppers were improperly blocked with metal plates. The blocking of the scuppers allowed waves coming aboard the vessel to be trapped between the deck’s bulkworks. The combination of these factors, according to the Coast Guard, led to progressive down flooding of the vessel and loss of stability.
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Laws regarding saving human life are not always cut and dry. According to federal law, 45 USC Section 2304, the master of a vessel must aid anyone at sea who is in danger of losing their lives, as long as such rescue can be performed without serious threat to the master, the master’s vessel, and those on board. However, maritime law is in agreement with common law in that an individual, including a vessel master, has this statutory duty to assist those in peril at sea only when a certain relationship exists, such as carrier/passenger, vessel/seaman, and employer/employee; also, whoever has caused a danger at sea must aid any persons or property they have endangered. Further, whether because of an established relationship or as a Good Samaritan, if an individual attempts a rescue which results in further harm due to negligence, recklessness, or wantonness, he or she may be held liable for damages.

How does this relate to the United States Coast Guard, which is a federal agency, and USCG employees? Does the USCG have a duty to provide rescue on demand? What standards of performance and care apply to the USCG, and under what circumstances can the USCG be held liable?
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On January 30, a 23-year-old fisherman was air-lifted from F/V NORTH SEA, a Seattle-based Coastal Villages Region Fund crab boat. According to reports, NORTH SEA crewmembers called the Coast Guard that afternoon when the man was seen suffering seizure-like symptoms.

According to the Coast Guard, NORTH SEA was about 60 miles southwest of St. Paul, Alaska, at the time. Conditions at the time are said to have been 6-foot seas and 29mph winds. The Coast Guard deployed a Jayhawk helicopter from Air Station Kodiak and airlifted the fisherman to St. Paul for medical attention.

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The Coast Guard received a May Day message at approximately 2:30 a.m. last night from the fishing vessel GENESIS A. The vessel was reportedly aground on a sand bar at the mouth of Willapa Bay near Leadbetter Point. A helicopter crew from Astoria, Oregon, hoisted the four crewmen and their dog to safety. There were no reported injuries to the crewmen. The cause of the grounding is unknown at this time, and the Coast Guard is assessing potential environmental damage. Leadbetter Point is a large and pristine National Wildlife Reserve. The sand bars and shoals at the mouth of Willapa Bay are constantly in a state of change, and the bar is recognized as hazardous to cross during winter months.

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The fishing vessel SENJA is reporting that a crewman has been lost overboard off the Washington Coast. The Coast Guard is searching for the crewman via helicopter and motor life boat. Weather is reported to be five knot winds with six foot waves. The accident happened at approximately 1:30 a.m. about 8 miles due west of Ocean Shores. The fifty-six year old crewman was not wearing a life jacket. It has been recommended that all deckhands working on commercial fishing vessels wear floatation devices and work vests. No further details are available about the accident at this time. Fishing off the Coasts of Washington and Oregon remains highly dangerous. Last year the F/V LADY CECELIA sank in the same fishing area, with the loss of four lives.

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On Saturday, September 29, the Coast Guard suspended its search for 32-year old Kelly Dickerson, the MAVERICK crewman who went missing after 90-foot VIKING STORM and 40-foot MAVERICK collided about 30 miles off La Push, Washington, the day before.

MAVERICK sunk, while VIKING STORM suffered a dented bow and some scrapes in the collision. None of the VIKING STORM crew were injured, and that crew managed to pull three of the four MAVERICK crewmen from the water. Those three men were reported to be in stable condition after their rescue and taken to Quileute Harbor Marina in La Push.

VIKING STORM is Vancouver BC-based and owned by Leader Fishing, LTD. MAVERICK is based out of Seattle and owned and captained by Darby Dickerson of Port Angeles. Mr. Dickerson was one of the rescued men and is also the father of Kelly Dickerson.

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As written previously, commercial fishing remains the most dangerous job in the United States. Alaska has a higher worker fatality rate than the rest of the U.S., partly because about 25% of commercial fishing related deaths in the U.S. occur in that state. According to a 2010 National Institute for Occupational Safety and Health (NIOSH) report on commercial fishing fatalities, falls overboard constituted 31%. Vessel disasters, such as sinking, constituted another 51%. A grim fact stated in the NIOSH report is that, of the 170 fall overboard fatalities between 2000 and 2010, none of the victims were wearing a personal flotation device (PDF).

Some people argue that there’s no reason to wear a PDF in cold seas because a person would die within two or three minutes from hypothermia. However, for the average healthy person in cold water, it takes hypothermia about 30 minutes to set in. In truth, wearing a PDF adds survival time pending rescue because it keeps you afloat even after you are too cold to move (but are still alive and able to recover). Remaining afloat also keeps you more visible to searchers, especially if your PDF has reflective tape and strobe lighting.
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After about ten years of investigation, studies, assessments, and meetings, the Akutan Airport Construction Project, awarded to Kiewit Infrastructure West Company, got underway on Akun Island in March of 2010 and is to be finished in the fall of 2012. There, Kiewit is building a 4,500 foot long paved runway, a taxiway, an apron, a sand storage building, a snow removal equipment building, a hovercraft maintenance and storage facility, three hovercraft landing pads, an access pad, and surrounding roads. According to Alaska DOT web site information, the federal budget slated for the project is $54,565,000.00. The total cost of the project, which is purported to be around $75 million, is additionally funded with state and local funding, including $1 million from Trident Seafoods Company. In addition to the airport on Akun Island, a hovercraft storage facility, pad, and ramp are under construction at Akutan Island. The hovercraft portion of the project is said to cost around $13 million, $11 million of which buys the hovercraft itself.

Akutan and Akun Islands are located about halfway into the Aleutian Chain, just east of Unalaska Island. The Akutan Island terrain is not amenable to building an airport, which is why Akutan Airport is being built on uninhabited Akun Island. Akun Island is about seven miles east across Akutan Harbor, so hovercraft service is crucial for connecting the airport with the City of Akutan.
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Injuries at sea are often caused by equipment that fails under normal use. Lines snap. Crane parts fail. Deck boards break. Ordinarily, when those items of equipment are produced or inspected immediately following an injury, then the case can be relatively straightforward. But, when there is a passage of time, broken equipment is lost or thrown away. Memories fade – sometimes conveniently fade. There is no question that the lawyer’s job is much easier – and the case much stronger – when the lawyer can get to the scene of the injury soon after it happens and the broken equipment can be preserved.

What happens when the equipment is thrown away? What happens when the injury scene is purposefully altered? There is a rule of law regarding “spoliation” of evidence.

Spoliation of evidence is generally defined as either willfully or negligently destroying or loosing documents or objects that could be used during legal proceedings. Washington State defines spoliation as the “intentional destruction of evidence.” Inherent in this is the assumption that the party which destroyed the evidence, even if the destruction was negligent and not intentional, knew or should have known the evidence would be legally pertinent. A lack of evidence may also beg the question: Did the evidence exist in the first place?
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Contact Information
Stacey & Jacobsen, PLLC Seattle, Washington
4039 21st Ave W. #401
Seattle, WA 98199
Phone: 206-282-3100 Toll Free: 877-332-5529 Fax: 206-282-1149
Stacey & Jacobsen, PLLC Anchorage, Alaska
205 E Benson Blvd #321
Anchorage, AK 99503
Phone: 907-751-2588 Toll Free: 877-332-5529

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