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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:

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During the last federal fiscal year eStacking Crab Pots in Alaska by Corey Arnoldnding on September 30, the U.S. Coast Guard reported that, for the first time in known history, no one died on the job while commercial fishing in Alaska. U.S. Coast Guard Capt. Phillip Thorne, chief of enforcement for the Coast Guard in Alaska, commented: “This is the first year, going back as far as we have records, that we didn’t have what I’ll characterize as an operational-related death.” Salmon fishing has replaced Bering Sea crab fishing as the deadliest fishery in recent years. While deaths did occur, the U.S. Coast Guard reports that they were unrelated to fishing operations.

According to NIOSH, in the prior year nine people died in Alaska fishing accidents, and there were 29 deaths nationwide. These numbers were the lowest since NIOSH started keeping record in 2000. Nationwide, commercial fishing deaths are on the decline. Many fisheries have been rationalized and consolidated, with quotas in place for individual boats instead of an entire fleet. Instead of boats racing out to catch the most fish in a defined period, fishing is slower under the quota system. As a result, there are less people making a living in commercial fishing and the fishing is slower, improving the safety of fishing operations. New equipment, including winch shutoffs, more comfortable life jackets, and better training has also improved safety.

The U.S. Coast Guard has increasingly emphasized safety exams for fishing vessels and recently began mandating exams nationwide for every fishing vessel that works more than 3 miles offshore. These safety examinations increase compliance with U.S. Coast Guard safety regulations and are designed to improve the most deadly form of accidents – vessel sinkings. With more federal observes required aboard Alaska fishing boats, safety issues are more regularly reported to the U.S. Coast Guard. Although six commercial fishing vessels sank between June and September in Alaska, there were no fatalities in those sinkings. In the past, vessel sinkings were the largest driver of fatalities and the recent survival of these crews may suggest that improved training is yielding positive results.

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News broke Thursday, June 25 of a tragic float plane crash near Misty Fjords National Monument, about 25 miles outside of Ketchikan, Alaska. The crash resulted in the deaths of all onboard, including eight Holland America Line passengers and the plane’s pilot.

The sightseeing airplane ride had been arranged through Holland America Line as an excursion available to cruise passengers aboard the vessel M/S WESTERDAM. At the time of the crash, the plane was on its way back from Misty Fjords National Monument, a wilderness area of lakes, waterfalls, snowcapped peaks and glacial valleys accessible only by floatplanes or boats. It has been reported that the plane crashed into a rock cliff face 800 feet above Ella Lake.

Investigators are still working to determine the cause of the crash, and the wreckage will be flown back to Ketchikan via helicopter to be reassembled and checked for mechanical problems. The company operating the excursion was Promech Air of Ketchikan, Alaska. The plane was a DeHavilland DHC-3 Otter turboprop seaplane.

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IN ADMIRALTY

FINDINGS OF FACT AND CONCLUSIONS OF LAW RE EVIDENTIARY HEARING ON MAINTENANCE AND CURE

This matter came on for an evidentiary hearing, before the Court, sitting without a jury, on May 14, 2015. Plaintiff Jeffrey A. Hedges (Hedges) was represented by Robert M. Kraft, Richard J. Davies and Marissa A. Olsson of Kraft Davies P.L.L.C., and defendant Foss Maritime Company (Foss) was represented by Barbara L. Holland and Tyler A. Arnold of Garvey, Schubert & Barer. The Court has considered the evidence presented at the hearing, the exhibits admitted into evidence, the arguments of counsel, and being fully advised, makes its Findings of Fact and Conclusions of Law as follows:

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In an order dated May 22, 2015, a Seattle federal court judge issued a ruling requiring Arctic Storm, Inc. to pay back maintenance payments to two fish processors injured on May 20, 2013 when a fire broke out on board the C/P ARCTIC STORM and also held that the processors’ punitive damages claim against the company for delay in payment could go forward to trial.  In ruling in favor of the fish processors represented by our firm, the Court wrote:  “The Court finds at least some delays in maritime benefits payments that a trier of fact could conclude represented willful and wanton disregard for defendants’ rights, and thus defendants’ punitive damages claim should go forward.”

Another significant issue in the claim was Arctic Storm’s position that it didn’t have to pay maintenance to the injured fish processors until it was supplied with medical records documenting ongoing medical treatment for the injuries.  Rejecting this position taken by Arctic Storm, the Court further concluded:  “[Arctic Storm] has provided no authority holding that a shipowner may withhold benefits while it verifies that such a prognosis remains up-to-date.  Consequently, the Court rejects this notion. . .  The Court further finds that, in light of [Arctic Storm’s] conduct up to this point, and the fact that plaintiff has shown itself capable of paying defendants’ bills within two weeks . . . defendants are entitled to an order setting a regular payment schedule.”

The Court’s ruling is important because it forecloses the practice of requiring updated medical records documenting ongoing treatment in order to qualify for continuing maintenance payments.  As a practical matter, obtaining records can take significant time and substantially delay the payment of necessary maintenance to injured seamen.  Since maintenance payments are intended to provide subsistence payments to an injured seaman during recovery, delay in making these payments risks substantial hardship to the injured fish processor.  Holding that repeated delays in making maintenance payments could form the basis for a punitive damages claim, the Court wrote:  “This Court finds no persuasive authority holding that repeated delays of maritime benefits cannot support a punitive damages finding under this standard even where the amounts owed are eventually paid.”

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As a personal injury law firm, we have growing concern that many people do not realize that their privacy settings are not properly set in Facebook and that anyone can see their posts, comments, and private photographs. In our experience, most of the people that claim that only their “friends” can see their Facebook page are incorrect. Do you think it’s a good idea to give everyone on the web unfettered access to every photograph posted of you on Facebook? Do you want open access to every photograph of your children or your spouse?

In the context of personal injury litigation or insurance claims, defense lawyers and insurance adjusters regularly snoop Facebook for information about a claimant. They are looking for information that they will try to use against you in your claim or other information that will lead to additional questions in your deposition.  They may spend hours going over every photograph or comment.  If your privacy settings are not properly set, you may be unwillingly exposing your entire life to everyone on the web, including lawyers and claims adjusters that are bent on trying to discredit you in litigation. You may also be unknowingly exposing yourself and your family to increased risk of identity theft or other crimes from criminals around the world with web access. Don’t open yourself up to these problems.

Even if you think your account is secure, it’s important that you check it today. We recommend that you log out of Facebook and do a search for your name. If you can see your entire Facebook page even when you are logged out of Facebook, so can everyone else on the web. Change your settings so that only “friends” can see your page. In this day of internet snoops, prowling defense lawyers looking for information about you, and cyber criminals, it’s important that you protect yourself today.

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In a recent opinion by federal judge Ronald B. Leighton, Foss Maritime Company was ordered to pay for a spinal cord stimulator for an injured tug worker represented by Kraft Davies, PLLC.  Foss had refused to pay for the procedure for its injured employee, claiming that the procedure did not improve the seaman’s condition and was designed only to reduce pain.  Rejecting Foss Maritime Company’s attempt to avoid responsibility for the injured worker’s medical treatment and holding that pain reduction was a valid purpose of medical cure, Judge Leighton ordered Foss to pay for a trial spinal cord stimulator to see if it would improve the worker’s pain and function.  In ruling in favor of the injured worker, Judge Leighton recognized the maritime rule that medical opinions terminating medical cure must be unequivocal and that any medical dispute about whether a medical treatment would assist the injured worker must be resolved in favor of the worker.  Key portions of Judge Leighton’s opinion are quoted below:

Seamen injured in service of the ship are entitled to maintenance and cure. Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, 132-33, 80 S. Ct. 247, 4 L. Ed. 2d 191 (1959). The duty of the shipowner is non-delegable and independent of fault. Dise v. Express Marine, Inc., 476 Fed. Appx. 514, 520, 2011 AMC 2972 (4th Cir. 2011), cert. denied, 132 S. Ct. 2393 (2012).

Maintenance is a per diem living allowance, paid so long as the seaman is outside the hospital and has not reached the point of “maximum cure.” Cure involves the payment of therapeutic, medical, and hospital expenses not otherwise furnished to the seaman, again, until the point of “maximum cure.”

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Unlike shore-side workers’ compensation schemes, a seaman may be entitled to recover maintenance and cure for a cancer diagnosis as long as the symptoms of the cancer manifest or were aggravated while in the service of the vessel. Courts have long recognized that: “ . . the shipowner’s liability for maintenance and cure [is] among ‘the most pervasive’ of all and [it is] not to be defeated by restrictive distinctions nor ‘narrowly confined.’ When there are ambiguities or doubts, they are resolved in favor of the seaman.” Vaughan v. Atkinson, 369 U.S. 527, 532, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962) (citations omitted, emphasis supplied); accord, Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 735, 63 S. Ct. 930, 87 L. Ed. 1107 (1943). The U.S. Supreme Court explained:

It has been the merit of the seaman’s right to maintenance and cure that it is so inclusive as to be relatively simple, and can be understood and administered without technical considerations. It has few exceptions or conditions to stir contentions, cause delays, and invite litigations.

Farrell v. United States, 336 U.S. 511, 516, 69 S. Ct. 707, L. Ed. 850 (1949). In Messier v. Bouchard Transp., the court described the doctrine:

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            The Bristol Bay red king crab season is scheduled to begin on October 15 and continue through January 15. This year, the allowable catch is up 16% over last year with a total of 9.9 million pounds. Similarly, state fisheries biologists have set the total allowable catch for tanner crab at 8.4 million pounds in the eastern sector and 6.6 million pounds in the western sector, which represents a substantial increase from 2013. Overall, the stocks of red king crab, tanners, and snow crab all showed big increased in mature size classes based on data from annual summer surveys taken by fisheries biologists.

With the start of Alaskan crab season, we are reminded that every year fishermen lose their lives and many suffer serious injuries in vessel accidents. Common examples of injuries include slips and falls on icy and wet decks without adequate non-skid protection or mats, being struck with swinging crab pots, fishermen struck by waves that wash them across the deck or overboard, frostbite, crushing injuries due to getting hands, legs, or feet caught in pinch points or deck equipment, injuries caused by fatigue and long hours operating heavy equipment, parting lines or cables out on deck, injuries while stacking or lashing crab pots out on deck, lifting injuries, injuries from bait choppers, falling cargo, unsafe access to docks, and many other types of incidents. Regardless of the cause of an injury, a vessel owner is responsible under the Jones Act for providing the crew with a reasonably safe place to work. If unsafe work conditions cause an injury, a fisherman can claim damages for the injury beyond payment of maintenance and cure. If you suffer an injury on an crab boat, make certain that you timely fill out an accident report even if you believe at the time that the injury will resolve. Get the names, addresses, email addresses, and telephone number of any witnesses to the incident. Make sure to take photographs, if possible, of the scene of the incident and any equipment that was involved. By taking these steps, you can assist your lawyer in finding the truth about how your injury occurred.

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According to the U.S. Coast Guard, a fisherman was rescued from the fishing vessel JACKPOT about 20 miles west of Gray’s Harbor, Washington on Saturday, August 24, 2013. The crew member was injured when a block came apart and struck the crew member in the head. After being struck in the head, the crew member reportedly stopped breathing and a federal marine observer performed CPR on the vessel. The crew member began breathing again after CPR was administered but remained unconscious. A U.S. Coast Guard Jayhawk helicopter crew evacuated the fisherman off the vessel and he was transported by air to Legacy Emanuel Medical Center in Portland, Oregon for emergency evaluation and treatment.

Members of fishing vessel crews are covered by the federal Jones Act and general maritime law for injuries at work. Under general maritime law, the failure of a piece of the vessel’s equipment can render a vessel unseaworthy. Similarly, under the federal Jones Act, it may be negligence to use improper or defective equipment. Here, the U.S. Coast Guard reported that the block came apart and struck the crew member. The reported details are sparse. However, if the block came apart because it was defective, broken, or otherwise failed because it was overloaded, that would likely render the block unseaworthy and/or the employer negligent. The crew member may be able to collect damages for lost wages, pain, disability, and loss of enjoyment of life caused by the incident. Head injuries can have serous life-long consequences. Because of the serious nature of these types of injuries, it is important that an early investigation is undertaken to determine the cause of the incident and preserve any important evidence, including physical evidence involved in the injury and the testimony of witnesses on deck when the incident occurred.