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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.

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.

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.

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)

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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