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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

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.

An employer is negligent for failing to provide its employees with sufficient space to safely conduct their work. For example, in Ribitizki v. Canmar Reading & Bates, 111 F.3d 658 (9th Cir. 1997), a seaman was assigned to work in a pit room on an oil drilling ship. The open area of the pit room was a rectangle four-feet by sixteen-feet. Within this space was a sink, a hatch in the deck, and a guarded opening for a stairway. While unkinking a hose cleaning the pit room, the seaman was injured when he walked backward or slipped into the open hatch. The employer argued that nobody had complained about the safety of the pit room before the incident and that no other employees had been injured in the pit room. Holding that the failure to provide adequate space for the crew to perform their work supported negligence, the Ninth Circuit reversed the trial court and stated:

“Ribitzki stated in his deposition that the pit room was an unsafe place because it provided insufficient space for him to perform his assigned task. . . Due to the configuration of the pit room, there was only 24 inches of deck space between the open hatch and the pit room bulkhead. It was in this contricted space immediately adjacent to the open hatch where Ribitzki performed his maneuver to unkink the hose. To get the kinks out of the hose, he turned around with his back to the open hatch and the hose above his head. When he did so, he stepped or slipped and fell into the opening. A jury could find from this evidence that the pit room in the area where Ribitzki fell was an usafe place for him to work.”

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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.

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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