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The 2016 Alaska salmon harvest is seeing a sharp decline from 2015, but one species is helping to save the summer fishing season.  According to the Alaska Department of Fish and Game, the projected total catch for salmon during the summer of 2016 is 161 million, down 40 percent from 2015’s harvest of over 268 million salmon.  To date in 2016 there has been about 88 million salmon caught.  One bright spot for Alaska fishing during the 2016 salmon fishing season has been the sockeye salmon, which is projected to have a total harvest that will rank in Alaska’s all-time top ten for sockeye.  While other salmon species have had low catch numbers, thus far the sockeye salmon harvest has surpassed 51 million.  Bristol Bay has received a sockeye salmon catch so far of 38 million, greatly exceeding expectations, and will likely result in the largest sockeye harvest there in over 20 years.

The large decline in 2016 for Alaska total salmon harvest can be contributed to the significant decline in pink salmon harvest statewide; an estimated 90 million will be caught this year, while 190 million were caught in 2015.  Some fishing areas, such as the Kodiak, are seeing the slowest pink salmon harvest since the 1970’s.  Other notable Alaska salmon harvests thus far include the following: red salmon, nearly 48 million – down 7 million from last year; silver salmon, 4.4 million – up by 500,000; and chum salmon, 19 million – up by 500,000.

While Alaska salmon fishing is one of Alaska’s most important industries, with an annual average harvest exceeding 150 million fish sold by commercial fishermen, it can also be a very dangerous occupation.  The National Institute for Occupational Safety and Health found that during the decade of 2000-2009, salmon fishery experienced the most occupational deaths within commercial fishing in the United States, with 39 fatalities.

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article-alaska-2-0726According to news reports, 46 crew members were forced to abandoned ship when the Fishing Company of Alaska factory trawler F/T ALASKA JURIS began taking on water and sinking off the coast of Alaska’s Aleutian Islands yesterday.  The U.S. Coast Guard was notified at 11:30 a.m. that the vessel was in distress and taking on water.  The crew got into survival suits and deployed in three survival life rafts.  The U.S. Coast Guard reports no injuries and the entire crew was reportedly transferred from life rafts in the water to merchant ships in the area.

The 220-foot F/T ALASKA JURIS began taking on water approximately 690 miles west of Dutch Harbor.  After the crew abandoned ship, two of the lift rafts were secured to the sinking vessel in an attempt to keep the rafts from drifting away.  A third raft with another 18 members of the crew was unable to tie up to the vessel and was adrift.  Crew members in all three rafts were eventually picked up by the good Samaritan merchant vessels SPAR CANIS and VIENNA EXPRESS.  The crew was loaded onto the vessels by 8:20 p.m. and was in route to Adak, Alaska according to the U.S. Coast Guard.

The cause of the vessel taking on water is under investigation by the Coast Guard, but preliminary information points to potential mechanical problems in the ship’s engine room that caused the vessel to lose power.  Weather at the scene was reportedly calm with limited visibility due to heavy fog.

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The 2015 annual recreational boating statistics report was released by the United States Coast Guard, which found the third lowest number of fatality deaths in a year at 626 deaths.  While the total number of fatalities represented a slight increase in the rate of deaths per 100,000 registered recreational vessels, it represented a continued trend in the decreasing number of overall boating related deaths.  In addition to 626 deaths, in 2015, there were 4,158 vessel related accidents leading to 2,613 injuries.  To put these numbers in perspective, in 2015, there were 11,867,049 registered recreational vessels, an increase of 63,047 from last year.

In 2015, the top 5 vessels with deaths or injuries consisted of 1) open motorboat; 2) personal watercraft; 3) cabin motorboat; 4) canoe/kayak; and 5) pontoon.  In addition, the top 5 primary accident types last year were 1) collision with recreational vessel; 2) collision with fixed object; 3) flooding/swamping; 4) grounding; and 5) skier mishap.  In 2015, the top 10 known primary contributing factors of accidents were:

1) Operator inattention           (551 accidents, 58 deaths, 353 injuries)

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On May 24, 2016, a federal court in Seattle rejected American Seafoods Company’s attempts to limit the maintenance rate to the $30 per day set forth in the employment contract. American Seafoods took the position that it would not pay our client more than the $30 per day set forth in the contract even though our client’s actual room-and-board expenses exceeded the contracted rate. As a result of the decision, American Seafoods can no longer limit its workers to the $30 a day set forth in its contracts and each worker is entitled to present evidence of their actual room-and-board expenses to establish their maintenance rate. This is a significant victory for American Seafoods seafood processors and other shipboard workers.

In finding in favor of our client and rejecting the rate set forth in the company’s contract in Sabow v. American Seafoods Company, USDC W.D. Wa. Case No. C16-0111-JCC, the Honorable John C. Coughenour adopted a burden-shifting test articulated by the Second Circuit in Incandela v. Am. Dredging Co., 659 F.2d 11, 14 (2d Cir. 1981). Under the Incandela burden-shifting test, a “seaman makes out a prima facie case on the maintenance rate question when he proves the actual living expenditures which he found it necessary to incur during his convalescence.” Incadela, 659 F.2d at 14. Once the seaman makes the proper showing, the burden shifts to the vessel owner to produce rebuttal evidence. Incandela, 659 F.2d at 14. In order to rebut the prima facie evidence presented by a seaman, the company must make a showing that the seaman’s expenses are unreasonable: “. . . Sabow need not find the cheapest accommodations – his accommodations need simply be reasonable.” Because American Seafoods failed to show that Sabow’s expenses were unreasonable, he was entitled to all of his living expenses under the doctrine of maintenance.

American Seafoods Company had further argued that the seaman’s living expenses should be prorated to take into account the fact that other family members lived in the apartment. Rejecting American Seafoods argument once again, the Court held that the amount of the seaman’s living expenses should not be prorated or otherwise reduced if he lives with other family members. In reaching this conclusion the Court reasoned that a seaman who pays for the rent or mortgage of a home he shares with his family actually spends out-of-pocket the entire amount. He cannot pay any less without losing his home. If a seaman would incur the lodging expenses of the home even if living alone, then the entire lodging expense represents the seaman’s actual expenses. Sabow v. American Seafoods Company, USDC W.D. Wa. Case No. C16-0111-JCC, Docket #30 at 12, citing Hall v. Noble Drilling, 242 F.3d 582, 589 (5th Cir. 2001).

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On March 12, 2016, a tugboat crashed into a barge on the Hudson River near New York City, leaving two dead and one missing.  The tugboat, name Specialist, was 84 feet long and sank near the new Tappan Zee Bridge. The tugboat sank within minutes after it hit a stationary construction barge near the bridge. The Specialist was one of three tugboats transporting a barge from Albany, New York to Jersey City, New Jersey. The crash resulted in 5,000 gallons of fuel aboard the tugboat being spilled in the Hudson River.  The three aboard the tugboat included the deceased, Specialist’s captain Paul Amon, 62 years old, and pilot Timothy Conklin, 29, who drowned in 40 degree temperature water. The third crew member, still missing, was identified by authorities as Harry Hernandez, 56.  At the time of the incident, 21 workers were on the bridge construction barge that was hit, but none sustained injuries.

Following the death of a tug crew member, the Jones Act provides a remedy for those who are fatally injured during the course of their employment. 46 U.S.C. § 30104.  The Jones Act is the exclusive remedy for negligence of the seaman’s employer, or of the master and crew, with respect to death of a seaman, as it provides both a “wrongful death” remedy and a limited “survival” remedy.  However, the Jones Act does not supersede remedies for torts other than negligence of his employer. Causes of action for unseaworthiness, strict liability, or negligence of third parties can be brought under the Death on the High Seas Act (DOHSA), if the wrongful acts occurred on the high seas, or the general maritime law’s wrongful death or survival remedies.  A Jones Act wrongful death action must be brought by the personal representative for the benefit of the seaman’s (1) surviving spouse and children, (2) parents, and (3) dependent next of kin. 45 U.S.C. § 59. In addition, the action can be brought only against the seaman’s employer.  Once a Jones Act wrongful death action is brought by a personal representative, they may try to recover for pecuniary losses, for pain and suffering, or for both.  Wrongful death pecuniary loss benefits are to be awarded based on the provable losses of each statutory beneficiary. Gulf, C. & S. F. R. R. Co. v McGinnis, 228 U.S. 173 (1913). Pecuniary losses are limited to those losses that may “be measured by a money standard.” American Railroad Co. of Porto Rico v. Didricksen, 227 U.S. 145, 150 (1913). Recovery normally is allowed to children of the decedent for loss of support to majority. Parga v. Pacific E. R. Co., 103 Cal. App. 2d 840, 230 P.2d 364 (1951).

In addition to pecuniary loss, the Jones Act does allow an additional recovery for the decedent’s conscious pain and suffering, predeath medical expenses, and predeath loss of income. Under the Federal Employers Liability Act (FELA), which is incorporated into the Jones Act, the decedent’s estate is allowed to recover damages on the cause of action the decedent himself would have had for his conscious pain and suffering but for his demise. See, Snyder v. Whittaker Corp., 839 F.2d 1085, 1988 AMC 2535 (5th Cir. 1988); Greene v. Vantage S.S. Corp., 466 F.2d 159, 1972 AMC 2187 (4th Cir. 1972).

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 5-10-13 photo law booksMaintenance and cure has been recognized in the United States courts dating back to 1823 when it was determined by the court that seamen by nature of their profession are particularly prone to injury and illness and are often ill-equipped to handle the expense of such. If while in service of a vessel, traveling to the vessel (in some instances), or on shore leave, a seaman is injured, falls ill or aggravates a pre-existing injury or illness, it is the duty of the ship-owner to provide the seaman with ‘maintenance’, which is a daily stipend intended to cover their room and board expenses while recuperating. The seaman’s employer has the duty to pay maintenance promptly until maximum medical improvement has been reached. Maintenance is most commonly paid twice per month.

Medical Cure

All reasonable and necessary medical treatment related to an injury or illness which occurred while in service of a vessel is considered “cure”. Seamen have the right to choose their own medical providers and are under no obligation to receive treatment from doctors selected by their employer. Generally a seaman’s health care providers bill the vessel owner directly for any treatments falling under cure. Employers must promptly reimburse the seaman for any out of pocket expenses relating to their treatment, including the cost of travel to medical appointments.

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The Alaskan fishing industry is made up of more than 78,000 jobs and is responsible for more than $5.8 billion in revenue each year. However, even after decades of progress for women in other fields, the Alaskan fishing industry remains mostly male dominated.  According to the Alaska Department of Labor and Workforce Development, women make up only 14 percent of commercial fisherman and roughly 33 percent of processing workers.  Women continue to face substantial challenges working in the male dominated fishing industry. For example, many captains still retain old prejudices that women cannot perform the work as well as men.

While women make up only a small percentage of the Alaskan fishing industry, there are many examples of their significant impact, including those who have built their own businesses, impacted business development in the industry, and passed down fishing legacies to their children.  Many women have been born into fishing families, where they have continued, and expanded upon, their generational fishing legacies.  At Kraft Palmer Davies we are proud to represent women who fish in Alaska and recognize the significant impact they have on the Alaskan fishing industry.

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Congress has postponed new regulations that would require fishing vessels under 36 feet to carry inflatable life rafts when going more than three miles offshore to the fishing grounds. President Obama signed the Coast Guard Authorization Act of 2015 on February 8, 2016 and it now calls for a formal rule making process before any new regulations will go into effect. It is anticipated that the rule making process may take a year or more to complete, including a public comment period, a review period, and then codification of the final rules. For now, smaller fishing boats may still operate out to 12 miles from shore without a survival raft and larger boats can operate out to 12 miles with a buoyant device or life float.

Despite the delay in the regulations, we are hopeful that the new regulations will eventually go into place to safeguard the lives of fishermen working on smaller boats. Life rafts cost approximately $2,500 but are critical equipment in the event that the fishing vessel begins to sink. Heavy weather and wave conditions on the Pacific Coast make smaller vessels vulnerable to sinking and capsizing. It takes longer for the U.S. Coast Guard to reach fishing vessels that are sinking more than three miles offshore and life rafts will provide extra safety for crews waiting for Coast Guard rescues.

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901265_approaching_seattle_on_the_ferryOn March 1, 2016, a Snohomish County Superior Court Judge found that the ferry system had wrongfully denied payment of maintenance and ordered the Washington State Ferry system to pay 275 days of back maintenance to an injured ferry worker represented by Kraft Palmer Davies, P.L.L.C.  In holding in favor of the injured worker, the Court ordered the ferry system to pay back benefits of $19,175 and costs of $1,323. The ferry system had argued that it was still investigating the claim and that it needed the results of diagnostic testing and physical therapy so that it could complete its investigation. In reaching its decision, the Court rejected the ferry system’s claims and stated: “The Court finds that there has been no good cause for the State’s failure to pay maintenance, that the State’s claim that the results of diagnostic testing and physical therapy are necessary to allow it to complete its investigation of Kelly’s claim for maintenance is pretextual, and the State’s denial of maintenance despite its payment of the coextensive duty of cure is arbitrary and capricious.” The Court directed our client to submit an application for an award of attorneys’ fees against the ferry system for its wrongful failure to pay maintenance to the injured ferry worker. The application for attorneys’ fees must be filed within 14 days. The ferry system will also face the issue of punitive damages at trial for wrongful failure to pay maintenance.

Maintenance is a daily stipend owed to a seaman recovering from an illness or injury while in the service of the vessel and is owed until the seaman reaches maximum medical improvement from the condition. “The rule of maintenance and cure is simple and broad: a seaman is entitled to maintenance and cure for any injury or illness that occurs or becomes aggravated while he is serving the ship.” Messier v. Bouchard Transp., 688 F.3d 78, 83-84 (2d Cir. 2012) (emphasis in original). In Dean v. Fishing Co. of Alaska, Inc., 177 Wn.2d 399 (2013), a unanimous Washington Supreme Court summarized the law of maintenance and cure:

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According to the Alaska Marine Conservation Council, the average age of an Alaska fishery permit holder in 2013 was 49.7 years old, 10 years older than the average age in 1980. In addition, only 17.3 percent of permit holders are under 40; in 1980, it was 38.5 percent.  Members of the Alaska fishing industry are growing older, which has spawned the Alaska Young Fishermen’s Summit. The summit’s purpose is to bring together younger fishermen from all over Alaska to discuss various issues and learn from each other.  Some of the issues they discussed and learned about at the Young Fishermen’s Summit include insurance tools to reduce risk, ocean acidification, fish prices and transboundary mines. In addition, fishermen went to the Legislature, met with the House Fisheries Committee, and learned about the state Board of Fish. Furthermore, they observed the International Pacific Halibut Commission, which approves catch limits and regulations.

The Governor of Alaska, Bill Walker, is big supporter of the Alaska Young Fishermen’s Summit and addressed the group, telling them he’s “just thrilled to see this program.” In addition, he stated “There are not enough young fishermen… Our oceans are so abundant with opportunity. Our job is to make sure that those opportunities are connected with you, with Alaskans.”

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