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Articles Posted in Unseaworthiness

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.

Scene-Photos-003-300x199On January 23, Ninth Circuit decided Batterson v. Dutra Grp. which addressed the whether punitive damages are available in an unseaworthiness cause of action. Following last year’s unanimous Washington State Supreme Court decision in Tabingo v. Am. Triumph LLC, 188 Wn.2d 41 (March 9, 2017), a three-judge panel of the Ninth Circiut answered the question in the affirmative, holding that punitive damages may be awarded in unseaworthiness cases to punish conduct which manifests reckless or callous disregard for the rights of others, gross negligence, actual malice, or criminal indifference.

This means that seamen asserting an unseaworthiness cause of action in courts within the Ninth Circuit, and in Washington State Courts, may claim punitive damages. . . . at least for now. The U.S. Supreme Court denied cert in Tabingo, supra, on January 8, but the shipowner in Batterton will almost surely seek Supreme Court review. There is currently a circuit split on this issue, as the Fifth Circuit ruled against the availability of punitive damages in McBride v. Estis Well Serv., L.L.C., 768 F.3d 382 (5th Cir. 2014), cert denied, 135 S. Ct. 2310, 191 L.Ed.2d 978 (2015). It remains to be seen whether the U.S. Supreme Court will weigh in on the issue.

Historically, courts in the Ninth Circuit and elsewhere have had an on-and-off relationship with punitive damages in unseaworthiness actions. In 1987, the Ninth Circuit held in Evich v. Morris that:

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.

A vessel may be rendered unseaworthy because of improperly maintained surfaces that are slippery and are prone to cause injuries. Compare Nicroli v. Den Norske Afrika-Og Australielinie Wilhelmsens Dampskibs-Aktieselskab, 332 F.2d 651, 654 (2d Cir. 1964) (affirming finding of unseaworthiness where wet and melted sugar had made the deck slippery), Troupe v. Chicago, D. & G. Bay Transit Co., 234 F.2d 253, 258 (2d Cir. 1956) (holding that triable issues of fact existed as to whether the vessel was unseaworthy because certain steps “were so painted and maintained as to be excessively slippery, especially when covered with water from a rain”), Courville v. Cardinal Wireline Specialists, Inc., 775 F. Supp. 929, 936 (W.D. La. 1991) (finding unseaworthiness “because of the absence of non-skid tape or some other appropriate skid resistant surface on the steep steps”), Jiminez v. United States, 321 F. Supp. 232, 233 (S.D.N.Y. 1970) (finding unseaworthiness where de-greaser solvent created a slippery condition and  [26] was allowed to remain unwiped while the workers lunched elsewhere without roping off the ladder or putting up any warning), and In re Sirret Offshore Towing Co., No. 96cv1228, 1997 U.S. Dist. LEXIS 13408, 1997 WL 539923, at *4 (E.D. La. Sept. 2, 1997) (finding that the vessel was unseaworthy in part because of the lack of anti-skid paint or mats), with Santamaria v. The SS Othem, 272 F.2d 280, 281 (2d Cir. 1959) (holding that “a deck made slippery [only] by rainwater does not constitute an unseaworthy condition”); See Drejerwski v. C.G. Willis, Inc., 587 F. Supp. 1515, 1517 (E.D. Pa. 1984) (holding that the jury could properly have found the barge owner negligent because the barge owner should  have known that the epoxy paint used on the barge would be “dangerously slippery in inclement weather” and “should have chosen a non-skid paint instead”).

If you sustain an injury as a result of a slippery condition on deck, it is important that you document what you slipped on in the incident report and take photographs of the condition, if possible.  You should also obtain the contact information for all witnesses who were present at the time of your injury.  Slips and falls out on deck are a common cause of serious injuries that can be prevented with regular maintenance of the deck and application of non-skid surfaces.

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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