Articles Posted in Commercial Fishing Injuries

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 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.
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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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Exito-300x182On Friday, December 6, 2016, at 9:38 p.m., the crew of the F/V Exito contacted the U.S. Coast Guard reporting that they were taking on water 14 miles northeast of Dutch Harbor.  Five crew members were aboard when the vessel sank and a nearby vessel, the Afognak Strait, was able to rescue three crew members from the water.  The U.S. Coast Guard responded with the Coast Guard cutter Alex Haley and a Jayhawk helicopter from Air Station Kodiak.  Unfortunately, the other two crew members were not found and remain missing.

After searching for the crew for three days, the U.S. Coast Guard called off the search on December 9.  Our thoughts and prayers go out to the families of the missing crewmembers of the F/V Exito.  The investigation into the details of the sinking of the F/V Exito remain under investigation by the U.S. Coast Guard.

The crew of the F/V Exito is covered under the Jones Act.  If you have questions about your right to compensation under the Jones Act, contact our experienced maritime injury and death attorneys for a free consultation.

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DSC_8358On November 9, the U.S. Coast Guard received a request for a medevac from F/V BLUE NORTH, a Seattle-based fishing company, when a 41-year-old crew member sustained a neck injury while working on the vessel.  Neck and spinal injuries can be serious and can lead to permanent disabilities.  Due to the nature of the injury, a U.S. Coast Guard flight surgeon recommended an emergency medevac from the vessel to a trauma center.  At the time of the incident, the vessel was approximately 285 miles northwest of St. Paul in the Bering Sea and steamed toward shore to meet the helicopter.  Taking off from Air Station Kodiak, a Jayhawk helicopter flew to Cold Bay to hoist the injured fisherman off the fishing vessel and the crew member was transported to the hospital for emergency evaluation and treatment.

At this point, there are no details about the cause of the crew member’s injury.  Fishermen injured on fishing vessels are entitled to coverage under the federal Jones Act, which covers seamen, fishermen, and other maritime workers injured on boats and ships.  Under the Jones Act, an injured fisherman may be entitled to lost wages and damages for pain, disability, and loss of enjoyment of life.

If you are injured on a fishing vessel, it is important that you notify your employer of the injury and fill out an incident report.  In the report, you should describe exactly how you were injured, what unsafe condition contributed to your injury, and provide the names of all witnesses that were present at the scene of your injury.  It is important that you obtain prompt medical attention following an injury.  You have the right to select your own medical providers and do not have to go to doctors selected by the fishing company.  While you receive medical treatment for your injuries, the company has an obligation to pay you a daily stipend called “maintenance” to cover your room-and-board expenses on land.  The company is also obligated to pay for all medical expenses related to your injury or illness that are designed to improve your condition.

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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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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 January 19th, a commercial fishing boat, named the Eagle III, sank at the entrance to Coos Bay after colliding with the north jetty.  The 40-foot crabbing boat, based out of Port Orford, Oregon, contained four members. The vessel’s captain is the only known survivor of the wreck, while the U.S. Coast Guard found the remains of one of its members, amongst a large debris field, and searched for the remaining two members.  Commercial fishing is one of the most dangerous jobs in America and we are proud to represent many of these very hard workers who routinely put their life on the line.

Source: http://registerguard.com/rg/news/local/33974641-75/1-fisherman-dead-2-missing-off-oregon-coast.html.csp

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A vessel may be rendered unseaworthy because of improperly maintained surfaces that are slippery and are prone to cause injuries. Compare Nicroli v. Den Norske Afrika-Og Australielinie Wilhelmsens Dampskibs-Aktieselskab, 332 F.2d 651, 654 (2d Cir. 1964) (affirming finding of unseaworthiness where wet and melted sugar had made the deck slippery), Troupe v. Chicago, D. & G. Bay Transit Co., 234 F.2d 253, 258 (2d Cir. 1956) (holding that triable issues of fact existed as to whether the vessel was unseaworthy because certain steps “were so painted and maintained as to be excessively slippery, especially when covered with water from a rain”), Courville v. Cardinal Wireline Specialists, Inc., 775 F. Supp. 929, 936 (W.D. La. 1991) (finding unseaworthiness “because of the absence of non-skid tape or some other appropriate skid resistant surface on the steep steps”), Jiminez v. United States, 321 F. Supp. 232, 233 (S.D.N.Y. 1970) (finding unseaworthiness where de-greaser solvent created a slippery condition and  [26] was allowed to remain unwiped while the workers lunched elsewhere without roping off the ladder or putting up any warning), and In re Sirret Offshore Towing Co., No. 96cv1228, 1997 U.S. Dist. LEXIS 13408, 1997 WL 539923, at *4 (E.D. La. Sept. 2, 1997) (finding that the vessel was unseaworthy in part because of the lack of anti-skid paint or mats), with Santamaria v. The SS Othem, 272 F.2d 280, 281 (2d Cir. 1959) (holding that “a deck made slippery [only] by rainwater does not constitute an unseaworthy condition”); See Drejerwski v. C.G. Willis, Inc., 587 F. Supp. 1515, 1517 (E.D. Pa. 1984) (holding that the jury could properly have found the barge owner negligent because the barge owner should  have known that the epoxy paint used on the barge would be “dangerously slippery in inclement weather” and “should have chosen a non-skid paint instead”).

If you sustain an injury as a result of a slippery condition on deck, it is important that you document what you slipped on in the incident report and take photographs of the condition, if possible.  You should also obtain the contact information for all witnesses who were present at the time of your injury.  Slips and falls out on deck are a common cause of serious injuries that can be prevented with regular maintenance of the deck and application of non-skid surfaces.

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Despite the deaths of 131 commercial fishermen from 2000 to 2009, the regulation of fishing vessel safety is very limited, in part, due to a strong commercial fishing lobby.  According to the National Institute of Occupational Safety and Health (NIOSH), half of these fishermen died from vessel disasters and another 31 percent died from falls overboard.  NIOSH is a leader in promoting the use of life jackets and other safety measures in the fishing industry.  NIOSH has found that only one of the 191 fishermen who died between 2000 and 2012 was wearing a life jacket.  While wearing a life jacket does not guarantee survival, it certainly greatly increases your chances of survival in the event that you fall overboard.

The types of life jackets worn on fishing vessels decks tend to vary based on the fishery.  According to a NIOSH survey, crabbers favored the use of Mustang and Sterns Inflatable Suspenders, while longliners preferred only the Mustang suspenders.  Gillnetters liked the Mustang suspenders, and Regatta Fishermen’s Oilskins with floatation built in.  Deck crews of Trawlers preferred inflatable suspenders, oilskins and a Stearns’ foam vest.  Given the different work requirements of the various fisheries, it is important for vessel owners to share information about what works best and to encourage or mandate the use of life jackets out on deck.

Because of the number of deaths caused by falling overboard, the use of life jackets has become a major focus at NIOSH.  The organization has been pushing employers to have a plan for when fishermen onboard should be wearing a lifejacket.  Standards may vary from vessel to vessel, and could be based on weather, duties, location of the ship, and other factors.  However, NIOSH is pushing all employers to have a plan for the use of life jackets.  In addition to life jackets, NIOSH stresses the use of man overboard alarms, personal locator beacons, and closing water-tight hatches on fishing vessels as important safety precautions that can save lives.

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An engine room fire was reported yesterday afternoon aboard the 334-foot fishing vessel ARCTIC STORM off the Washington Coast, about 30 miles west of Gray’s Harbor.  The vessel’s crew reported the fire at approximately 3:30 p.m., notifying the Coast Guard that there was an uncontrollable engine room fire.  At the time the fire broke out, there were 120 crewmembers aboard.

5-21-2013 photo arctic stormThe Coast Guard dispatched two MH-60 Jayhawk helicopter crews from Air Station Astoria and three 47-foot motor lifeboat crews to the scene.  The Coast Guard also notified other ships in the area of the emergency via an Urgent Marine Information Broadcast.

The crew of the ARCTIC STORM was able to get the fire under control later in the evening before the Coast Guard arrived on scene, using the Halon chemical firefighting system aboard the ship.  However, as of yesterday evening it was still too hot to enter the engine room and assess the damage.

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