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In response to the COVID-19 pandemic, the Pacific Northwest commercial fishing industry, together with state and local officials, have drafted rigorous protocols to protect the industry and the communities where they work. The first major coronavirus outbreak in the fishing industry occurred on a Seattle-based American Seafoods trawler, the American Dynasty, where 92 out of the 126 crew members tested positive for COVID-19. This news shook the Pacific Northwest fishing industry and came at the same time that meat processing plants across the U.S. were reporting similar outbreaks.

The rapid spread of COVID-19 on the American Dynasty showed how quickly the disease could spread on board a fishing vessel. It is a semi-enclosed environment where fishermen share bathrooms, sleeping quarters, and work side by side every day. Adding to the stress is the fact that the pandemic is happening as thousands of workers in the fishing industry are traveling up to Alaska from out-of-state because summer is the fishing industry’s busiest season. Some, including the CEO of Bristol Bay’s regional health corporation, called for Alaska to cancel this year’s season, but the state pushed ahead.

To ensure that the fishing season can continue, seafood companies and government officials are working hard to create and enforce safety measures to prevent the spread of coronavirus and keep the community and the workers safe. The State of Alaska issued a mandate on March 11th (revised June 5th) detailing the standards that independent commercial fishing must adhere to.

8-15-2013-cruise-ships-at-grand-turk-1106432-mOn March 7th, despite the escalation of the COVID-19 crisis, Holland America Line’s MS Zaandam proceeded with its voyage allowing 1,241 passengers and 586 crew members to board the cruise ship in Buenos Aires, taking a risk it would prove not to be able to handle. Only one day later, on March 8th, the United States government put out a statement warning against cruise ship travel. It would not be until March 13th, when those aboard the MS Zaandam were already trapped at sea, that Holland America announced it would be suspending cruise ship operations.

Undeterred by the evolving pandemic, during the cruise’s first weeks at sea, Holland America’s focus was on the guests’ vacation experience, rather than the safety of those on board. Passengers continued to gather for meals, take dance lessons, and relax in the casino. However, by March 22nd, passengers on the MS Zaandam began to show coronavirus symptoms, and the virus spread rapidly because of the ship’s semi-enclosed environment. Cruise line executives vastly underestimated COVID-19, assuming that they could protect those aboard by relying on past protocols to protect their guests and staff from disease outbreaks. However, it soon became clear that the outbreak was out of control, and all guests were quarantined, confined to their cabins.

Denied entry to port after port, the MS Zaandam became the cruise to nowhere. In need of support, the MS Rotterdam, Holland America’s fastest cruise ship, was dispatched with additional supplies, staff, and test kits. On March 27th, it met the MS Zaandam on the coast of Panama. In addition to delivering staff and supplies, passengers deemed healthy were transferred to the MS Rotterdam. Crew members reported that they were initially unaware that passengers would be transferred during the rescue mission, putting the crew in danger of exposure. Although initially denied, both ships were eventually granted passage through the Panama Canal and able to continue their journey to Florida.

NortherJaeger-300x199On May 31st, American Seafoods released a statement that crew members of the American Dynasty tested positive for COVID-19. In all, 94 crew members were confirmed positive for the virus. Soon after, it was reported that two more out of American Seafoods’ six total trawlers had crew members test positive for coronavirus, including four crew members on the F/T American Triumph and 21 crew members on the F/T Northern Jaeger. These reports rattled the commercial fishing industry. All three trawlers were docked in Seattle, where the vessels were sanitized, and crew members were tested. American Seafoods has not stated whether or not these trawlers would head north to the Bering Sea to fish for pollack.

In light of the evolving coronavirus crisis, American Seafoods had worked with health consultants to create a plan to keep their workers safe. This plan initially required a five-day quarantine before heading to sea. However, according to the Center for Disease Control, it can take individuals up to 14 days to show symptoms of COVID-19. Before the F/T American Dynasty went to sea, none of the crew members were symptomatic, but it only took two weeks onboard for almost three-quarters of the crew members to become infected. After push-back, American Seafoods changed its policy on June 5th to include a 14-day quarantine. A 14-day quarantine is in line with state and federal guidelines and other commercial fishing companies.

All the trawlers that reported crew members infected with COVID-19 underwent the five-day quarantine. In addition, a fourth trawler, the F/T Ocean Rover, also only underwent a five-day quarantine before leaving Washington state. According to Anchorage Daily News, crew members on the F/T Ocean Rover were worried about asymptomatic carriers and a potential outbreak. Crewmembers and their families wanted the F/T Ocean Rover to be tested in Bellingham, Washington before headed up to Alaska.

IMG_8848-300x200On January 31, 2019 at approximately 10 p.m., the F/V SCANDIES ROSE sank near Sutwik Island, Alaska with seven crew members on board.  According to a news release by the U.S. Coast Guard, two survivors were rescued and five crew members remain missing from the 130-foot crab fishing vessel.  When the Coast Guard arrived at the scene, visibility was almost zero but they were able to see the faint lights of the life raft holding the two rescued crew members.  The search for the missing crew members included a span of 1400-square miles with weather reported at the scene of 60 mph winds.  The Coast Guard used four MH-60 Jayhawk helicopter crews, two HC-130 Hercules airplane crews, and the Coast Guard Cutter Mellon in an attempt to find the missing crew members.  After 20-hours of searching, the U.S. Coast Guard made the difficult decision to suspend the search for the missing crew on January 1, 2020 at 6:08 p.m.

At the time of the incident, our law firm was involved in pending litigation in King County Superior Court against the vessel for alleged unsafe crab pot stacking practices that led to a career-ending crew injury.  The captain of the vessel had recently given a deposition in the crab pot stacking case on December 12, 2019 and some of the other crew members were witnesses in the case.  In his deposition, the captain gave extensive testimony about his crab pot stacking practices.  Our lawyers and expert boarded the F/V SCANDIES ROSE in Seattle on May 18, 2019 as part of the investigation into the case and inspected the vessel and its equipment.  Because the stability of the F/V SCANDIES ROSE in icing conditions may be a substantial issue in the investigation into the sinking, the testimony of the captain and other evidence collected in our case could be important to the investigation and any litigation.  Our sincere condolences go out to the families and friends of the missing crew members.  By all accounts, they were brave men doing a difficult job and they will be deeply missed by all.

Under the Jones Act, the personal representative of the estate of a seaman lost at sea may bring a cause of action for wrongful death for the benefit of (1) a surviving spouse and children; (2) parents; and (3) dependent next of kin.  45 U.S.C. § 59.  Common law spouses may recover, if, looking to applicable state law, the existence of common law marriage is recognized.  The recoverable damages for wrongful death under the Jones Act include damages for loss of financial support, loss of nurture and guidance to minor children, loss of service, and pre-death pain and suffering.  See e.g., Centeno v. Gulf Fleet Crews, Inc., 798 F.2d 138 (5th Cir. 1987).  If you have questions about the remedies available under the Jones Act for wrongful death, feel free to contact our law firm for a free consultation to discuss maritime law remedies under these circumstances.  Because of the complexity of these issues and the unique nature of maritime law, it is important that you consult with an experienced maritime injury law attorney.

Stacking-Crab-Pots-in-Alaska-by-Corey-Arnold-300x241ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

This matter comes before the Court on the Plaintiff’s Motion for Summary Judgment (Dkt. 16) and the Defendants’ Cross Motion for Summary Judgment (Dkt. 20). The Court has considered the pleadings filed in support of and in opposition to the motions and the file herein.

This case arises from the Defendants alleged failure to pay the Plaintiff full wages from a 2015 fishing season. Dkt. 1. It is undisputed that the Court has jurisdiction over the parties under maritime law. 28 U.S.C. § 1333. The parties now file cross motions for summary judgment. Dkts. 16 and 20. For the reasons provided, the Plaintiff’s motion (Dkt. 16) should be granted, and the Defendants’ motion (Dkt. 20) should be granted, in part, and denied, in part.

On September 5, 2018, in Hoffas v. American Seafoods Company, King County Superior Court Cause No. 17-2-01150-9 SEA, a King County Superior Court judge held that American Seafoods was “. . . negligent for failing to provide [the injured seaman] with a safe place to work on March 2, 2016 because the access to the mid-ship crane control was not reasonably safe, violated the company’s own policies, and violated relevant industry standards, without handholds . . .” on board the F/T AMERICAN DYNASTY.

The injured combination worker was ordered to operate the starboard mid-ship crane to assist with deck operations.  The mid-ship crane was a knuckle-style crane with the capacity to reach all parts of the trawl deck.  The crane was stowed in a cradle forward of the crane when it was not in use and can rotate 360-degrees.  It was equipped with a wireless remote control that allows the crew to operate the crane from anywhere on the deck to stay out of the weather and avoid having to climb up into the control tower.  Unfortunately, the remote control was not available on March 2, 2016 because it was broken or the chief engineer had taken it out-of-service to avoid the crew misplacing the unit.  Because he could not use the remote control, Hoffas had to climb up into the control tower using a fixed ladder on the base of the crane pedestal and then transfer 90-degrees to a fixed ladder that extended up to the control tower.  When Hoffas had finished using the crane, he attempted to descend down the fixed ladder from the control tower.  There were no hand-holds for the lower ladder.  As he stepped down from the top ladder trying to rotate 90-degrees to the top rung of lower ladder, Hoffas slipped on the first rung of the lower ladder and fell hard 3-5 feet to the deck.  The distance between the bottom rung of the upper ladder and top rung of the lower ladder was at least 17-inches down and 4.18 inches over.  Hoffas testified that the upper ladder was loose from striking the bulkhead on the other side of its rotation multiple times and that a control cord was wrapped around the rungs of the upper ladder.  During the fall, Hoffas twisted his left knee and was seriously injured.  The photograph below shows the ladders coming down from the control tower:

The Ladder Violates American Seafoods’ Own Safety Standards.

Scene-Photos-003-300x199On January 23, Ninth Circuit decided Batterson v. Dutra Grp. which addressed the whether punitive damages are available in an unseaworthiness cause of action. Following last year’s unanimous Washington State Supreme Court decision in Tabingo v. Am. Triumph LLC, 188 Wn.2d 41 (March 9, 2017), a three-judge panel of the Ninth Circiut answered the question in the affirmative, holding that punitive damages may be awarded in unseaworthiness cases to punish conduct which manifests reckless or callous disregard for the rights of others, gross negligence, actual malice, or criminal indifference.

This means that seamen asserting an unseaworthiness cause of action in courts within the Ninth Circuit, and in Washington State Courts, may claim punitive damages. . . . at least for now. The U.S. Supreme Court denied cert in Tabingo, supra, on January 8, but the shipowner in Batterton will almost surely seek Supreme Court review. There is currently a circuit split on this issue, as the Fifth Circuit ruled against the availability of punitive damages in McBride v. Estis Well Serv., L.L.C., 768 F.3d 382 (5th Cir. 2014), cert denied, 135 S. Ct. 2310, 191 L.Ed.2d 978 (2015). It remains to be seen whether the U.S. Supreme Court will weigh in on the issue.

Historically, courts in the Ninth Circuit and elsewhere have had an on-and-off relationship with punitive damages in unseaworthiness actions. In 1987, the Ninth Circuit held in Evich v. Morris that:

On Saturday, the Seattle-based crab boat F/V DESTINATION went missing in the Bering Sea, approximately two miles off of St. George Island, with six crewmembers aboard.  St. George Island is located about 650 miles west of Kodiak Island, and has approximately 100 residents.  The DESTINATION was on its way to begin the snow crab season.

The vessel’s emergency locator beacon (EPIRB) was activated at 6:11 a.m. on Saturday, and the U.S. Coast Guard and volunteers searched for nearly three days for the vessel and crew, without success.  The EPIRB can be activated manually, or activates automatically upon hitting sea water.  The Coast Guard received no mayday call from the vessel, which has led to speculation that whatever befell the vessel happened quickly.  Volunteer vessels assisted the Coast Guard search, as well as individuals on ATVs along the shoreline of St. George Island.  There are high cliffs along the shore of St. George, which provided volunteers a vantage point to look out to sea for evidence of the DESTINATION or debris from the vessel.

Search crews reported 30 mph winds, five to eight-foot waves, and air temperature of 20 degrees.  The Bering Sea is known for bad weather this time of year.  In such temperatures, ice can build up on a boat, reducing stability and buoyancy.

 NortherJaeger-300x199It’s that time of year again.  The holidays are over and you’re going back to work on a factory trawler up in Alaska for “A-Season.”  Whether you’re a returning crew member or a greenhorn, it’s important that you have a clear understanding of your legal rights before going up to Alaska on a factory trawler.  Failure to protect or know your rights before you leave can seriously impact your ability to get fair compensation if you are injured.  Here are the top 10 things to know about your legal rights before going back to work:

  1. Report Your Injury. If you get injured on a factory trawler, you need to report the injury as soon as possible in writing.  Some leads or supervisors will try to delay or discourage you from filling out an accident report in order to limit the number of claims filed against the company.  You should insist on filling out an accident report immediately.  Remind your supervisor that company policy requires you to fill out an accident report following an injury.
  1. Fill Out An Accident Report. Fill out an accident/incident report even if you believe the injury will resolve quickly.  Some injuries that you initially believe will resolve quickly can turn into larger issues that may lead to surgery.  You are not a doctor and don’t know if your injury will become more serious than you believe at first.  If you fail to fill out an accident/incident report in a timely manner, the company may try to deny your claim because you did not report it.

Scene-Photos-003-300x199Maintenance is a daily stipend intended to cover the room-and-board expenses of a maritime worker injured in the service of a vessel, including seafood processing and deckhands on factory trawlers owned by American Seafoods Company.  An injured worker is entitled to maintenance payments until the worker reaches maximum medical improvement from the injury. Based on contracts it drafted, American Seafoods has callously taken the position that injured workers are entitled to only $30.00 per day for maintenance payments while they recover from injuries sustained on its vessel, regardless of whether their actual room-and-board expenses exceed $30.00 per day.  Other seafood processing companies have allowed for higher living maintenance rates based on an employee’s actual room-and-board expenses.  American Seafoods’ position against its own workers has now been rejected in cases brought by our clients in both state and federal courts in Washington.

On November 28, 2016, King County Superior Court Judge Sue Parisien ordered American Seafoods to pay maintenance of $78.43 per day to an injured seafood processor represented by Kraft Davies PLLC while he recovered from partial knee replacement surgery due to an injury at work.  In ruling against American Seafoods, Judge Parisien ruled:  “American Seafoods has not cited any valid basis in fact or law allowing it to limit plaintiff’s maintenance rate to $30 per day, when plaintiff’s actual room and board expenses total $78.43 per day.”  Order Granting Plaintiff’s Motion for Attorney’s Fees Incurred in Pursuing Unpaid Maintenance at 3 ll. 7-10.  The Court further ruled:  “American Seafoods’ ongoing denial of maintenance, which forced plaintiff to hire counsel to pursue benefits which he is plainly owed, is willful.”  Id.  The court went on to award the injured seafood processor attorneys’ fees for the cost of increasing his maintenance rate from $30.00 per day to $78.43 per day.

This is the second time this year that a court has rejected American Seafoods’ attempts to limit maintenance payments to $30 per day and provides hope to injured workers who struggle to meet their expenses while off work due to an injury on an American Seafoods vessel.  Earlier this year in Sabow v. American Seafoods Company, USDC Western District of Washington Case No. C16-0111-JCC, the Honorable John C. Coughenour ruled that American Seafoods could not limit maintenance payments to $30 per day and must reimburse injured workers based on their reasonable actual room-and-board.  American Seafoods has now appealed the issue to the Ninth Circuit Court of Appeals.

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