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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.

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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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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 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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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 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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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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The Alaska Seafood Marketing Institute recently released a report titled “The Economic Value of Alaska’s Seafood Industry.” The report, consisting of 2014 data, states that there are 60,000 workers in Alaska’s seafood industry, which earn $1.6 billion per year. In 2014, the Alaska fishing harvest produced 5.7 billion pounds of seafood.  Among the commercial fishing sector there are 31,819 skippers and crew and 8,618 fishing vessels. People from all 50 states in the U.S. participate in Alaska’s commercial fisheries. In 2014, only 55 percent of skippers and crew were residents of Alaska; after Alaska, Washington is the largest contributor of fishermen to the Alaska fishing industry.  The Alaska seafood industry has significant economic impacts, accounting for about 20 percent of Alaska’s basic private sector economy. In addition, the Alaska seafood industry exports to over 100 countries annually. Furthermore, in 2014, those exports were valued at $3.2 billion (55 percent of U.S. seafood exports).  In one of the most significant fishing regions, the Bristol Bay region, commercial fisheries generate an average of $95 million. In addition, Bristol Bay accounted for 11 percent of the value of Alaska’s fisheries in 2014, with a value of $221 million dollars for about 222 million pounds of seafood. The fishery includes 502 resident-owned fishing vessels and 1,619 resident fishermen.

In Alaska, economic impact by species varies. For example, salmon creates the most jobs, the most labor income, and the most total value. In addition, Pollock’s economic impact is a close second, but is the largest single species U.S. fishery by volume. Furthermore, halibut, black cod, and crab are considered high value species, as they account for only 2 percent of total Alaska seafood volume, but 18-20 percent of the labor income and economic output of the fishing industry.

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According to a report in the Kitsap Sun, a man attempted to jump from the ferry M/V WALLA WALLA on Saturday night about 10 minutes after the ferry departed from Edmonds at 6:15 p.m. The man was arguing loudly with his female companion and attempted to jump over the rail into the cold waters of Puget Sound. Ordinary seaman Logan Batchelor intervened quickly and was able to prevent the man from getting over the rail before others came to his assistance.  His swift actions with the help of others in the area likely saved the life of the man attempting to jump over the rail.

As lawyers representing WSF employees, we are proud of the work that our clients and friends at WSF perform to keep the ferries running and the public safe. We congratulate Logan Batchelor on his quick intervention that likely saved the life of a man at a time of need.

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Failure of a vessel’s equipment under normal use constitutes unseaworthiness under the general maritime law. Havens v. F/T Polar Mist, 996 F.2d 215 (9th Cir. 1993); Lee v. Pacific Far East Line, Inc., 566 F.2d 65 (9th Cir. 1977); Marshall v. Ove Skou Redari A/S, 378 F.2d 193 (5th Cir. 1967), cert. den. 389 U.S. 828, 88 S. Ct. 86, 19 L. Ed. 2d. 84 (1967). “[T]hings about a ship, whether the hull, the decks, the machinery, the tools furnished, the stowage, or the cargo containers, must be reasonably fit for the purpose for which they are to be used.” Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 213, 83 S.Ct. 1185, 10 L. Ed. 2d 297 (1963). “The shipowner’s liability arising from an unseaworthy condition continues until it can be corrected and embraces the means employed to alleviate the dangerous condition.” Benedict on Admiralty, 1B at § 3-43-44 (7th ed. 1997) (emphasis added); see also Alaska Steamship Company v. Garcia, 378 F.2d 153 (9th Cir. 1967). In Garcia, a longshore worker was called upon to remedy an improperly rigged boom and was injured in the process lowering the boom. Holding in favor of the injured worker, the Ninth Circuit opined:

“The liability of the shipowner arising from this unseaworthy condition therefore continued until such correction could be made and, in our opinion, embraced any method or act employed in correcting the dangerous condition. Garcia was injured because the risk that the boom might fall materialized. This being the case, it is without legal significance that the unseaworthy condition might have been corrected in a manner which would have prevented the boom from falling.”

Id. at 155. Similarly, in Hudson Waterways Corporation v. Schneider, 365 F.2d 1012 (9th Cir. 1966), the Ninth Circuit posed the issue as “whether the doctrine of unseaworthiness protects a seaman injured while repairing a defective appliance.” Id. at 1013-14. The court held that the plaintiff was protected by the doctrine of unseaworthiness when he was shocked by a defective manual control switch box attached to an air compressor he was sent to repair. Ruling that the vessel owner was not exonerated because the seaman was sent to repair the defective air compressor, the Ninth Circuit held:

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According to the Ceberingseaopis2082-2nter for Disease Control and Prevention (CDC), on-deck injuries account for 12% of all fatalities in the commercial fishing industry and the largest number of hospitalizations in non-fatal injuries. Most of these injuries (67%) occur on deck during the deployment and retrieval of fishing gear. In order to avoid injuries, employers should conduct a job safety analysis of their fishing gear deployment and retrieval process to look for ways to prevent injuries.

Vessel owners should also carefully evaluate the deck environment for slip and trip hazards as well as other common types of hazards out on deck. Crew fatigue is another common cause of injuries out on deck. The deck of commercial fishing boats are oftentimes congested with machinery and fishing equipment that can lead to severe slips and falls or entanglement. Many employers take inadequate measures to make certain that adequate guarding and safety features common in other industries are used on fishing vessels to prevent injuries out on deck.

Vessel owners should evaluate their vessels for the following safety equipment and measures: