Articles Posted in The Jones Act

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.

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.

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.

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.

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.

An employer is negligent for failing to provide its employees with sufficient space to safely conduct their work. For example, in Ribitizki v. Canmar Reading & Bates, 111 F.3d 658 (9th Cir. 1997), a seaman was assigned to work in a pit room on an oil drilling ship. The open area of the pit room was a rectangle four-feet by sixteen-feet. Within this space was a sink, a hatch in the deck, and a guarded opening for a stairway. While unkinking a hose cleaning the pit room, the seaman was injured when he walked backward or slipped into the open hatch. The employer argued that nobody had complained about the safety of the pit room before the incident and that no other employees had been injured in the pit room. Holding that the failure to provide adequate space for the crew to perform their work supported negligence, the Ninth Circuit reversed the trial court and stated:

“Ribitzki stated in his deposition that the pit room was an unsafe place because it provided insufficient space for him to perform his assigned task. . . Due to the configuration of the pit room, there was only 24 inches of deck space between the open hatch and the pit room bulkhead. It was in this contricted space immediately adjacent to the open hatch where Ribitzki performed his maneuver to unkink the hose. To get the kinks out of the hose, he turned around with his back to the open hatch and the hose above his head. When he did so, he stepped or slipped and fell into the opening. A jury could find from this evidence that the pit room in the area where Ribitzki fell was an usafe place for him to work.”

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A lawsuit filed in U.S District Court in Hawaii challenges the applicability of the Jones Act in the state.  The lawsuit was filed by attorney and former Hawaii state lawmaker John Carroll and alleges that provisions of the Jones Act are in violation of the commerce clause by restricting shipping between states to American-owned and manned ships.  Carroll blames the Jones Act for Hawaii’s high cost of living and other economic ills. 

The U.S. District Court dismissed the case on the grounds that the population Carroll represents, all Hawaiian consumers, is unduly large and diverse.  Carroll previously challenged the Jones Act in 2009, and his previous case was dismissed on the same grounds as the present case.  Carroll already filed an appeal of the ruling.

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In order to qualify for coverage under the Jones Act and other general maritime law remedies, a seaman must be in the service of the vessel at the time of the injury or illness.  Whether a seaman is in the service of the vessel, is a recurring issue in maritime injury litigation, but is broadly construed by the courts in favor of coverage for the seaman.

The responsibility of vessel owners to seamen for maintenance, cure, and unearned wages is to be construed “broadly, when an issue concerning … scope arises”.  Aguilar v. Standard Oil Co., 318 U.S. 724, 729 (1943).  The U.S. Supreme Court held, “the words ‘in the course of his employment’ as used in the Jones Act were not restricted to injuries occurring on navigable waters, … they were broadly used by Congress in support of ‘all the constitutional power it possessed’”.  Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, 130-31 (1959).  “[T]he nature and foundations of the liability require that it be not narrowly confined or whittled down by restrictive and artificial distinctions defeating its broad and beneficial purposes.  If leeway is to be given in either direction, all the considerations which brought the liability into being dictate it should be in the sailor’s behalf.”  Aguilar, 318 U.S. at 735.

Whether a seaman is “in the course of employment” is a function of “1) the degree of control the employer-vessel owner had over the seaman at the time of injury; and 2) whether the seaman, at the time of injury, was on personal business or on a mission for the benefit of his employer or attending to the business of the employer.”  Lee v. Mississippi River Grain Elevator, Inc., 591 So.2d 1371, 1373 (La. App. 1991).

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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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