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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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 5-10-13 photo law booksMaintenance and cure has been recognized in the United States courts dating back to 1823 when it was determined by the court that seamen by nature of their profession are particularly prone to injury and illness and are often ill-equipped to handle the expense of such. If while in service of a vessel, traveling to the vessel (in some instances), or on shore leave, a seaman is injured, falls ill or aggravates a pre-existing injury or illness, it is the duty of the ship-owner to provide the seaman with ‘maintenance’, which is a daily stipend intended to cover their room and board expenses while recuperating. The seaman’s employer has the duty to pay maintenance promptly until maximum medical improvement has been reached. Maintenance is most commonly paid twice per month.

Medical Cure

All reasonable and necessary medical treatment related to an injury or illness which occurred while in service of a vessel is considered “cure”. Seamen have the right to choose their own medical providers and are under no obligation to receive treatment from doctors selected by their employer. Generally a seaman’s health care providers bill the vessel owner directly for any treatments falling under cure. Employers must promptly reimburse the seaman for any out of pocket expenses relating to their treatment, including the cost of travel to medical appointments.

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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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Congress has postponed new regulations that would require fishing vessels under 36 feet to carry inflatable life rafts when going more than three miles offshore to the fishing grounds. President Obama signed the Coast Guard Authorization Act of 2015 on February 8, 2016 and it now calls for a formal rule making process before any new regulations will go into effect. It is anticipated that the rule making process may take a year or more to complete, including a public comment period, a review period, and then codification of the final rules. For now, smaller fishing boats may still operate out to 12 miles from shore without a survival raft and larger boats can operate out to 12 miles with a buoyant device or life float.

Despite the delay in the regulations, we are hopeful that the new regulations will eventually go into place to safeguard the lives of fishermen working on smaller boats. Life rafts cost approximately $2,500 but are critical equipment in the event that the fishing vessel begins to sink. Heavy weather and wave conditions on the Pacific Coast make smaller vessels vulnerable to sinking and capsizing. It takes longer for the U.S. Coast Guard to reach fishing vessels that are sinking more than three miles offshore and life rafts will provide extra safety for crews waiting for Coast Guard rescues.

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901265_approaching_seattle_on_the_ferryOn March 1, 2016, a Snohomish County Superior Court Judge found that the ferry system had wrongfully denied payment of maintenance and ordered the Washington State Ferry system to pay 275 days of back maintenance to an injured ferry worker represented by Kraft Davies, P.L.L.C.  In holding in favor of the injured worker, the Court ordered the ferry system to pay back benefits of $19,175 and costs of $1,323. The ferry system had argued that it was still investigating the claim and that it needed the results of diagnostic testing and physical therapy so that it could complete its investigation. In reaching its decision, the Court rejected the ferry system’s claims and stated: “The Court finds that there has been no good cause for the State’s failure to pay maintenance, that the State’s claim that the results of diagnostic testing and physical therapy are necessary to allow it to complete its investigation of Kelly’s claim for maintenance is pretextual, and the State’s denial of maintenance despite its payment of the coextensive duty of cure is arbitrary and capricious.” The Court directed our client to submit an application for an award of attorneys’ fees against the ferry system for its wrongful failure to pay maintenance to the injured ferry worker. The application for attorneys’ fees must be filed within 14 days. The ferry system will also face the issue of punitive damages at trial for wrongful failure to pay maintenance.

Maintenance is a daily stipend owed to a seaman recovering from an illness or injury while in the service of the vessel and is owed until the seaman reaches maximum medical improvement from the condition. “The rule of maintenance and cure is simple and broad: a seaman is entitled to maintenance and cure for any injury or illness that occurs or becomes aggravated while he is serving the ship.” Messier v. Bouchard Transp., 688 F.3d 78, 83-84 (2d Cir. 2012) (emphasis in original). In Dean v. Fishing Co. of Alaska, Inc., 177 Wn.2d 399 (2013), a unanimous Washington Supreme Court summarized the law of maintenance and cure:

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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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One of the most deadly jobs in America is commercial Dungeness crab fishing, yet according to a new study from Oregon State University (OSU), many non-fatal injuries in the industry largely go unreported.  The study conducted by OSU found the rate of fatal injuries in commercial Dungeness crab fishing to be 65 times higher than the rate for all United States workers; however, the nonfatal injury rate was 3 times lower. For example, from 2002-2014 28 people died while commercially fishing for Dungeness crab, while only 45 injuries were reported. In addition, it was found that the majority of deaths occurred during vessel disasters such as capsizing or sinking. Furthermore, the most common reported injury was fractures; 47 percent of nonfatal injuries occurred on-deck when fishermen were working with gear.  Researchers found the cause of underreporting to be the result of concerns of financial and regulatory repercussions. Barriers to reporting also may play a role in the underreporting of injuries.

The research that OSU has found is part of a project, The Fishermen Led Injury Prevention Program (FLIPP), which is designed to take a new approach to fishing industry injury prevention by working with commercial Dungeness crab fishermen to identify and reduce injury risks.

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On January 19th, a commercial fishing boat, named the Eagle III, sank at the entrance to Coos Bay after colliding with the north jetty.  The 40-foot crabbing boat, based out of Port Orford, Oregon, contained four members. The vessel’s captain is the only known survivor of the wreck, while the U.S. Coast Guard found the remains of one of its members, amongst a large debris field, and searched for the remaining two members.  Commercial fishing is one of the most dangerous jobs in America and we are proud to represent many of these very hard workers who routinely put their life on the line.

Source: http://registerguard.com/rg/news/local/33974641-75/1-fisherman-dead-2-missing-off-oregon-coast.html.csp

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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.