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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.

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.”

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.

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.

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.

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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The search for a 30 year-old man and a 27 year-old woman who fell overboard off the Carnival Cruise ship ms SPIRIT has been halted.  The cruise line did not become aware that the couple was missing until they failed to pick up their luggage at the end of the cruise.  Reviewing surveillance video after the cruise ended, the cruise line determined that Paul Rossington and Kristen Schroder went overboard approximately 93 miles off Foster, New South Wales in Australia.

These type of incidents have occurred in the past.  According to a list published a cruise website, over 70 people have fallen overboard from cruise ships since 2000.  Carnival Cruise Lines had 28 passengers fall overboard off its ships during this period according to the list.  Of the people that fell overboard, 10 were rescued and the rest died as a result of the fall or drowning.

Under maritime law, a cruise line has a duty to exercise reasonable care to prevent injuries to passengers while on a cruise. If a family member falls overboard on a cruise, it is important that an experienced maritime lawyer is retained to determine whether a cause of action may exist against the cruise line.  Holding the cruise line accountable for deaths or injuries is important to improving the safety of the industry.  The cruise line will likely appoint an experienced lawyer to conduct its investigation and take action to protect the company from possible legal action.  It is important that your family have an experienced lawyer working to determine the cause of the incident and make certain that the truth comes out in the investigation.

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4-4-2013 photo social mediaWe posted earlier about the role of Facebook and other social media in maritime personal injury litigation, and are now following up with some dos and don’ts of social media.  This list is only a general outline and does not by any means cover all aspects of social media.  The biggest piece of advice we can give you, is use common sense.  If something feels personal and you would feel violated if the other side got to see it, Facebook probably isn’t the place to talk about it.

1.    DO beef up your privacy settings.  As discussed in our earlier post, the other side will likely be able to get a copy of your Facebook or other social media account after a lawsuit has been filed.  However, they have to specifically ask for it and are not entitled to it prior to the formal discovery process.  A huge portion of cases are settled prior to ever filing a lawsuit, and in those cases the other side would never be entitled to dig into your personal life via your social media account.  Furthermore, even where a lawsuit has been filed, strict privacy settings would prevent the other side from looking at your social media account without your knowledge, or looking at portions of your accounts that are not discoverable.  We recommend having the strictest privacy settings available.

4-4-2013 photo hand stand2.    DON’T post pictures of yourself or allow others to post pictures of you doing activities that relate to or might aggravate your injury.  For example, if you have a back injury, it is probably not a good idea to post pictures of yourself showing off how much you can lift.  As an aside, you shouldn’t be engaging in these activities anyway.  Even if a photo was taken prior to your injury, if it is posted after you were injured, you may run into a real headache having to prove when it was taken.  Don’t post any pictures related to what happened.  If you think something is relevant to your case, it doesn’t belong on Facebook.

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4-4-2013 photo facebookSocial media is progressively playing a larger role in our culture today, and coincidentally in litigation.  Many times, our maritime personal injury clients are surprised that after a lawsuit has been filed, the defense often requests a copy of the client’s entire Facebook account.  Clients wonder: Why is a Jones Act employer or a cruise line entitled to see a person’s private social media account?

Similarly, access to social media by employers is an issue that legislators are currently grappling with.  A bill currently before the Washington State Legislature has been in the news recently because of a controversial proposed amendment that would allow employers to obtain employees’ personal Facebook and other social media passwords as part of company investigations.  The bill, sponsored by Senator Steve Hobbs, D-Lake Stevens, is intended to safeguard the passwords of workers and job applicants in Washington, but the proposed amendment chips away at these protections. 

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