Maritime Lawyer Blog

Seafarers in Washington can look to the example set by the seamen aboard a cargo tanker who had not been paid for three months. The tanker sailed from Indonesia and remained docked in Singapore for two months. 20 seamen claimed their combined unpaid wages of $300,000 through two unions, the Singapore Maritime Officers' Union and the International Lutheran Seafarers' Mission. Their success shows how 3rd party assistance, like an attorney or union representative, in this difficult type of negotiation produces results.

46 USC Section 10313 is the federal statute that governs a seaman's entitlement to wages and provisions. The statute states that entitlement to pay begins when work starts or when specified by an agreement, whichever is earlier. This statute also clarifies that wages do not depend on earning freight by the vessel. If the voyage ends earlier than the time listed in the employment agreement, the shipowner is still required to pay for the period of time the seaman did work. Relief is provided to any seaman who is discharged improperly before the beginning of the voyage or before one month's wages are earned. Improper discharge can occur if a seaman is let go without his consent or without any fault on the part of the seaman. An improperly discharged seaman may recover wages actually earned in addition to one month's compensation.

The timing of payment is also outlined in this statute, which allows a seaman who is not on a fishing vessel, whaling vessel, or yacht to assert payment from the shipowner for 1/2 the balance of wages earned and unpaid at each port where the vessel loads or delivers cargo. At the end of the voyage, the balance is to be paid within 24 hours after the cargo has been discharged or 4 days after the seaman has been discharged, whichever is earlier. Penalties are applied when shipowners delay payment without sufficient cause. Two days wages are to be paid for each day the payment is delayed.

All agreements are guided by 46 USC 10302 which requires the employment agreement to contain the nature and estimated duration of the intended voyage, the time the seaman is to be onboard to begin work, amount of wages, regulations, scale of the provisions that will be provided, and any stipulation in reference to the advancement and allotments of wages. Different types of merchants or voyages may have their own unique method of payments, like fishing vessels, which may pay a percentage of the catch. This should be incorporated into the agreement. Some employment agreements may also be subject to collective bargaining agreements made between the shipowner and a union. Collective bargaining agreements may have their own deadlines for filing or providing notice of a claim and require all disputes to be settled in arbitration.

Continue reading "Pacific Seafarers Finally Claim Three Months of Unpaid Wages" »

Washington has over 7,000 bridges across the state that provide critical transportation links over waterways. Washington's Department of Transportation engages different programs to inspect and repair these towering structures that have been built over the last century. While bridges are often placed over waterways, they are rarely associated with a life at sea. However, at the beginning of 2013, the 5th Circuit Court of Appeals issued an opinion that allowed two ironworkers to recover from a construction contractor under the Jones Act. In this case, the lower and appellate courts both determined the ironworkers met the definition of a seaman and could recover under the Jones Act and general maritime law.

The United States Supreme Court case Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), established a two-pronged test to determine who is a seaman. To qualify, one must first show the employee's duties contribute to the function of the vessel or to the accomplishment of its mission. Next, the employee must have a connection to a vessel that is substantial in terms of both its duration and its nature. In the 5th Circuit case Grab v. Boh Brothers Construction Co., the ironworkers performed part of their work from a derrick barge that would routinely move in the water along the length of the bridge as work progressed. One of the workers spent 30-95% of his time on the barge and was partially responsible for assisting with the navigation and maintenance of the barge. The other worker was injured on his first day on the job.

In their appeal, the defendant construction company employer argued that the workers did not meet the definition of seamen under the Jones Act. The Court of Appeals disagreed with that argument, affirming the District Court's assessment that both were seamen by applying the analysis in Chandris. The court determined that the work each performed on the barge contributed to the vessel's purpose and that the connection to the vessel was both substantial in nature and duration. The defendant employer argued that the work was land-based and not substantial in nature or duration, particularly with the employee who was only on the job for one day. However, the court maintained that one must look at the full breadth of the intended scope and duties of the employment and whether the job exposed the workers to the perils of the sea. The court thus affirmed the lower court's judgment, allowing the monetary awards totaling over $2 million to stand.

Cases stemming from the 9th Circuit Court of Appeals also follow the test established in Chandris. Anyone seeking to recover under the Jones Act must show that their duties contribute to the function of the vessel and have a substantial connection. The 9th Circuit has scrutinized whether work done on a barge qualified as a vessel that would transit navigable waters, and assessed the total circumstances of an individual's employment to see if there was sufficient relation to the navigation of the vessels and the perils attendant thereon. (See Gault v. Modern Continental/Roadway Construction Co., Inc. Joint Venture, 100 Cal. App. 4th 991, 123 Cal. Rptr. 2d 85, (9th Cir. 2002) and Heise v. Fishing Company of Alaska, 79 F. 3d 903, 1996 A.M.C. 1217 (9th Cir. 1996)).

Continue reading "5th Circuit Case Shows Washington Bridge Repairmen May Be Able to Recover Compensation Under the Jones Act" »

The 13th Coast Guard District posted a bulletin from Seattle to remind vessel operators to maintain a proper lookout while crossing Washington waters. The reminder was issued because vessel operators, including commercial fishermen, sometimes allow their vessels to drift at night in open water while the crew sleeps. This is a violation of a core seamanship law, or "Rule 5" of the International Regulations for Prevention of Collisions at Sea (COLREGS). This rule requires all vessels to maintain a proper lookout by sight and hearing at all times. If there is other equipment available, like a radar, it must be used in addition to a proper lookout.

The Coast Guard notice also reminds readers that the vessel captain has the responsibility to maintain adequate watch-keeping and manning. Failure to do so can result in a maximum fine issued by the Coast Guard of $6500.00 per violation. Failure to keep a proper watch may result in a collision with another vessel that leads to costly damages, as illustrated by the Fourth Circuit Federal Court of Appeals Case, Yarmouth Sea Products, Ltd. v. Scully, 131 F.3d 389, 1998 A.M.C. 835 (4th Cir. 1997).

In this case, the operator of a sailboat collided with a commercial fishing vessel. The sailboat operator was sailing alone. He acknowledged that he may have dozed off while at the cockpit. The sailboat was only equipped with one radar that was not functioning due to a failed electric generator. The VHF (very high frequency) radios and top mast navigations lights were not functioning. The sail boat was sailing at 5-8 knots when it hit the commercial fishing vessel, which was drifting at 1-1.5 knots. The fishing vessel was properly manned with a lookout and operating with functioning radios and navigation lights, but was unable to avoid the collision.

The appellate court agreed with the lower court's assessment that the sailboat operator was entirely at fault. The lower court assessed that he failed to maintain a proper lookout by sight, hearing or radar, and to display navigation lights while his boat was moving. All of these failures led to the collision, and he bore the responsibility of the damages sustained by the commercial fishing vessel. The sailboat operator appealed, challenging the calculation of the damages awarded to the fishing vessel and its crew. The lower court awarded $78,616 for the fishing vessel's lost catch, loss of supplies, loss of brokerage, hull damage, and pre-judgment interest. The sail boat owner contended that the damages were too speculative to support the award of damages as a matter of law. The appellate court determined that damage to a fishing vessel at sea during a catch had to be calculated with "reasonable certainty".

The fishing vessel owners asked the court to calculate damages based on the price of the catches made on the same vessel before and after the collision. The lower court, however, looked at the price of the catches of a similar fishing vessel owned by the same company and made an award that reflected that boat's catches. The appellate court ruled the lower court's award and reasoning did not quite meet the standard of "reasonable certainty", and remanded the case for further consideration on the issue of damages, leaving much to the lower court's discretion.

The sailboat operator also challenged the award of damages to the fishermen onboard who had a contract to share a percentage of the catch's profits, minus certain expenses for the boat's operation. The Court of Appeals affirmed the award to the fishermen, stating that fishermen are allowed to recover for the tortious acts of third persons that interfere with their ability to maintain their livelihood.

Continue reading "Coast Guard Reminds Washington Vessel Operators to Maintain a Proper Lookout" »

Carnival recently announced a series of repairs that will be made to several ships in their fleet, including those who make ports of call in Washington. The cruise line intends to add emergency generators, upgrade fire safety, and improve engine rooms at a cost of approximately $300 million dollars. The company stated that it would begin by placing temporary emergency generators in its ships to ensure the equipment that provides safety emergency services, plumbing, and fresh water remain intact. Those generators will be replaced by permanent emergency generators.

Carnival is also installing high pressure water mist systems to better the fire safety onboard and making several dry dock repairs to their engine rooms that will allow each of their generators to operate independently in the event the other fails. In addition to the structural overhaul, Carnival Corporation is reimbursing the United States for the costs incurred by the Coast Guard and Navy while helping the cruise ships Triumph and Splendor.

Carnival Cruise Lines is owned by Carnival Corp., based in Florida. They also own several other cruise lines including Holland America, Cunard, and Princess. The company headquarters said it would also review whether the ships in those fleets need similar upgrades. These intense changes raise questions as to what sort of duty Carnival, or any other cruise line, owes to their passengers who are injured onboard.

Maritime law has long established that the owner of a ship in navigable waters owes a duty to all onboard for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case. The United States Supreme Court made that clear in Kermarec v. Compagnie General Transatlantique - 358 U.S. 625 (1959). In that case a gentleman came on board with an authorized pass to see his friend who worked for the ship. While he was leaving he fell and injured himself because of a defective canvas runner that was tacked to the stairway. The Court agreed with the jury that the ship failed in its duty and should pay damages to the injured gentleman.

The Court emphasized that maritime law focuses on simplicity and practicality so that those who are injured may recover for a breach of duty. The current news of Carnival's repairs may raise eyebrows, but to succeed in a legal action for a personal injury that occurred on board, the passenger must show that the ship owner breached their duty of exercising reasonable care, that this breach of duty caused an injury suffered by the passenger, and the amount of damage that the injury caused. Whether it is Carnival, Norwegian, or Royal Caribbean, all cruise lines owe this duty of reasonable care to their passengers, and all passengers are allowed to file civil suit if the ship owners fail in this duty.

Continue reading "Carnival Cruise Lines Attempts to Improve Its Reputation Through Repairs and Repayment" »

Last month, longshoremen walked off the job twice at Port Tacoma, Washington, following the deaths of fellow workers. One gentleman died from blunt force trauma while working atop a crane. Another longshoreman died after working from a ladder near an electrical cable. Initial reports indicate the second longshoreman died of natural causes. However, the longshoremen walked off on both occasions out of respect for their co-worker and concerns for their own safety.

Longshoremen are an essential part of dock labor as highly skilled and productive workers who load and unload containers from shipping vessels that make their way across the country on trucks and trains. The intense physical labor puts dock workers at higher risk for serious accidents that can lead to injury or death. The federal government enacted the Longshore and Harbor Workers' Compensation Act in 1927 to provide workers' compensation coverage for dock workers. The Act is designed to provide benefits for disability due to an injury or an employment-related occupational disease that happens in the navigable waters of the U.S.

When a longshoreman is injured on the job, under the Act he or she can be compensated for the longshoreman's medical bills, including hospital services and supplies. A longshoreman can also receive compensation for disability at 66 2/3 percent of his or her weekly salary while recovering from the injury. If the injury becomes permanent, then the percentage of impairment is determined through a medical examination. The percentage of permanent impairment is then used in a calculation to determine how much compensation is needed to make the injured worker whole.

If a work-related accident results in the death of a longshoreman, then compensation for funeral expenses and lost wages of the longshoreman are also available for the widow, widower, or other eligible survivors. A surviving spouse may receive up to 50% of the average weekly wage of the longshoreman for life or until remarriage. Surviving children may receive benefits until they turn 18, but may have their benefits extended if they are unable to provide for themselves.

Correct classification of an injury is important to maximize the compensation an injured longshoreman receives. Injuries are categorized as either temporary or permanent and total or partial. The type of disability impacts whether the employer or the Office of Workers' Compensation Program (OWCP) pays for the injury. This past year the Ninth Circuit Court of Appeals issued a decision regarding the question of whether or not a partial "permanent" disability may be re-characterized as "temporary" during a period of recuperation.

In this case a longshoreman injured her neck and back and was considered permanently partially disabled. Her compensation was initially funded by her employer for the first two years and then the OWCP. The longshoreman's injuries worsened till surgery was required. Following surgery, her physical condition stabilized, but ultimately became permanent and total after nine months. The OWCP argued that this 9-month period was a period of "recuperation or healing", and should be characterized as a temporary disability.

The 9th Circuit Court of Appeals assessed the definition of temporary disability under the LHWCA and reaffirmed that a disability is temporary so long as there is a chance of improvement through normal or natural healing. Once there is no chance of normal or natural healing, then maximum medical improvement has been reached and the disability is considered to be permanent instead of temporary. The Court acknowledged that they have not previously questioned when a disability changes from permanent to temporary, but ultimately agreed with the prior determinations that the period following surgery is a period of recovery that can be classified as a temporary disability. This transferred responsibility of payment for the longshoreman's injuries from the OWCP back to the employer.

Continue reading "Washington's Port of Tacoma Under Investigation After Two Longshoremen Deaths" »

Royal Caribbean operates several cruise ships that anchor at several ports of call, with two ships sailing to Seattle, Washington - Radiance of the Seas and Rhapsody of the Seas. A death on board the Enchantment of the Seas is currently under investigation. A 64 year old woman was found dead in her cabin by her husband. An autopsy confirmed her death was the result of a heart attack, and an investigation is still in progress for the suspicious death.

Cruises are associated with languid days on the beach and relaxing activities on deck. However, death and injury occur with the same frequency onboard as on land. Likewise, these events sometimes occur because of the negligent actions of another. Cruise ships are obligated to provide their guests with reasonable care under the circumstances. If they fail in this duty, and an injury or death occurs as a result of this failure, then the cruise line is liable for the damages that occurred as a result of the injury or death.

Cruise ship tickets include a "forum selection clause". This generally states that if you purchase the tickets from the cruise line, you agree to the cruise line's choice of venue if you pursue legal action against the cruise line. In addition to the limitation of where you can sue, cruise lines require that you provide written notice of a claim BEFORE filing suit in a court of law. Royal Caribbean requires that notice of a claim be submitted within six months of the date of the illness, injury, or accident. The lawsuit must be filed within one year after the date of the illness, injury, or accident. Other cruise lines have similar clauses, but you are encouraged to check since the requirement may be less than six months to file notice of a claim.

If a death on board occurs because of the cruise line's negligence, where the ship was located when the injury occurred could determine whether the federal Death on the High Seas Act preempts the injured's or representative's ability to file a claim in state court. If the event that caused the death or injury occurred further than three nautical miles off the coast, then DOHSA applies and damages are limited to loss of support, services, and inheritance. It must also be proven with supported facts and a reasonable amount of certainty to avoid speculation.

Continue reading "Authorities Investigate Death on Royal Caribbean International Cruise" »

An opinion issued on March 14th, 2013 by the 5th Circuit Court of Appeals declined to apply state law principles of fraud and unjust enrichment to a maritime law claim. An injured seaman hurt his back while on his company's vessel, but had failed to disclose that he suffered from prior back pain and injury. He received five years worth of maintenance and cure and sought to extend the award. During discovery, the company learned of his prior medical history, including the back injury, and moved for partial summary judgment. This included restitution for the amount of maintenance and cure previously paid to the seaman.

In Washington and other states, maintenance and cure have functioned as compensation under maritime and admiralty law for those injured while working aboard a vessel. Maintenance is a daily allowance given to those injured during their period of recovery until they reach maximum medical improvement or fit to return to duty as before. Cure is payment for reasonable and necessary medical expenses including doctor's visits, medical equipment, testing, and transportation for medical appointments.

No fault or negligence needs to be proven, just that illness or injury occurred while working. Punitive damages may be awarded if the employer willfully and wantonly withheld maintenance and cure. Generally, there is not a lot to bar a claim for maintenance and cure, even pre-existing medical conditions. There must be a material misrepresentation in a medical questionnaire that would have prevented the employer from hiring the seaman, otherwise benefits are paid.

In Boudreaux v. Transocean, the Court of Appeals looked to a previous Supreme Court case, Still v. Norfolk & Western Railway Co., to affirm the principles of maintenance and cure. It is such a deep-rooted obligation between a seaman and his employer, that even fraud, alone, is not enough to terminate the employer-employee relationship and the right to maintenance and cure. This precedent stands alongside a fellow 5th Circuit ruling in McCorpen v. Central Gulf S.S. Corp., where the court found that an employer does not have to pay maintenance and cure if it can establish that a seaman intentionally misrepresented or concealed a pre-existing medical condition that is material to employment and casually connected to the injury sustained.

In Boudreaux, the company was seeking an instant restitution on previously paid maintenance and cure amounts, based on the discovery of the seaman's concealed medical history. The appellate court found it necessary to preserve the paternalistic precedent of maintenance and cure awards, and ultimately refused to extend maritime law to include an instant award of restitution of paid maintenance and cure when misrepresentation is discovered.

Continue reading "5th Circuit Court of Appeals Declines to Alter Well-Established Principles of Maintenance and Cure" »

At the end of February, a barge in Commencement Bay near Tacoma Washington was recently aided after it began listing and taking on water. The barge, owned by Amix Marine Services, was carrying several crushed cars owned by Schnitzer Steel. Several cars had fallen into the water, creating an oil sheen on the surface from the cars' residual oil left in their tanks. U.S. Coast Guard and Washington's Department of Ecology created a 250 yard safety zone around the barge in an attempt to minimize damage to the environment.

Accidents like this serve as a reminder that towage is different than charter. There are two types of towage contracts: contracts of affreightment, where one party transfers cargo from one place to another; and towage contracts where one party takes a vessel, like a barge, and moves the vessel elsewhere. If the party that is supplying the transportation owns the tug or barge that is moving another party's goods, then that is considered a contract of affreightment.

Courts have been faced with similar questions, as in Agrico Chemical Co. v. M/V Ben W. Martin, 664 F.2d 85 (5th Cir. 1981), where a company that owned the barge contracted with a chemical manufacturer to move a nitrogen fertilizer product in a contract of affreightment. The barge company then contracted with a tow boat company to tow two of their barges containing the product. A third barge was needed to move extra product, so the barge company requested that the towing company provide a vessel. A vessel was provided by the towing company, but manned by someone from the barge company. It was this third vessel provided by the towing company that capsized with the product.

The manufacturer only sued the towing company, but the towing company sought indemnification from the barge company. The lower court found that the barge company was solely liable, awarding the manufacturer full damages against the towing company and full indemnity for the towing company against the barge company. The appellate court reversed that decision, splitting liability between the barge company and towing company, assessing the contractual obligations to be different than what was found by the lower court.

The court held that the initial contact between the manufacturer and barge company was one of affreightment. The contract between the barge company and towing company was a towage contract for the first two barges, but the contractual relationship for the third barge that would determine liability was uncertain. Ultimately, the court found that the barge company had subcontracted its original contract of affreightment with the manufacturing company with the towing company. The barge company was negligent in its loading and its duty of workmanlike performance as a stevedore. The towing company was negligent in its choice of vessel and redistribution of the product.

Continue reading "Recent Washington Barge Accident Generates Questions of Liability" »

Two distressed men were rescued after being stranded at sea off the coast of Penn Cove, Washington. The recreational vessel had been blown away from shore with no engine or means of propulsion. The boat was fighting against 40-knot winds and 5-8 foot swells. The men and a dog were rescued by a helicopter and did not have any injuries. Damage to the boat was not reported.

Damages to a pleasure craft or injuries to passengers on-board sometimes have different legal remedies than one might find at state court for actions on land or for other vessels at sea. Pleasure crafts or recreational vessels may look to admiralty court for relief if the accident occurred in navigable waters or the tort has a nexus in maritime activities.

A case in the 9th Circuit Court of Appeals, Delta Country Ventures, Inc. v. Don Magana, 986 F.2d 1260 (9th Cir. 1993), provides the guidelines of what type of complaint has subject matter jurisdiction in admiralty court. The facts leading up to this case began with a boy who dove from a boat owned by a recreational leasing company leased to a friend of the boy. The boy hit a rock and sustained serious injuries and was diagnosed a quadriplegic.

The leasing company filed a complaint seeking admiralty jurisdiction, exoneration, and limitation of liability under applicable statutes. The boy sued in state court to recover damages from the leasing company, the family who leased the boat, and from other public entities. He moved to dismiss the leasing company's federal court claim, and the lower court agreed. The leasing company then appealed the decision, insisting that they have subject matter jurisdiction.

The leasing company was seeking to limit their liabilities under 46 U.S.C. App., Section 183. That section states that the liability of the owner shall not, except for reasons delineated in subsection (b), exceed the amount or value of the interest of such owner in such vessel. For this limitation to apply, the case had to be considered in Federal District Court which is the only forum where cases arising from admiralty or maritime jurisdiction can be heard. Admiralty jurisdiction is appropriate "when a 'potential hazard to maritime commerce arises out of activity that bears a substantial relationship to traditional maritime activity.' " Sisson v. Ruby, 497 U.S. 358, at 362 (1990).

Sisson is a landmark decision where the U.S. Supreme court established that not every accident that occurs in navigable waters is one that falls under maritime or admiralty jurisdiction. Both the District and Appellate court held, per Sisson, there must be a connection between the activity that led to the accident and maritime activities that involve commerce in navigable waters. Both courts saw the activity as diving off a pleasure boat, and that the pleasure boat was not participating in traditional maritime activities.

The Appellate Court looked to a four part test established prior to the Sisson decision that examined 1) the historical concepts of admiralty law, 2) the function and role of the parties, 3) the types of vehicles and instrumentalities involved, 4) the causation and nature of the injury suffered. The 9th Circuit determined that this test survived the Supreme Court decision and relies on this analysis in similar types of accidents.

Continue reading "Coast Guard Rescues Two Stranded at Sea on Recreational Vessel" »

Carnival cruise line has recently been under intense media scrutiny, following an engine room fire that knocked out power and caused one of their vessels to float at sea for five days. Cruise ship vacations are a booming industry with an estimated 16 million passengers sailing onboard in 2011. The Port of Seattle in Washington State has seen over 800,000 passengers in each of the last five years. Supply is having a hard time keeping up with demand. The increasing amount of passenger vessels are matched by a growing number of accidents and injuries that occur as a result of the cruise line's or cruise line employees' negligence.

Under general maritime law, ships must provide their passengers with "reasonable care under the circumstances". Cruise ship tickets may successfully limit the jurisdiction or time to file a claim, but they cannot completely remove liability for negligence that stems from the actions of a crew member or the cruise company. (See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1990) and Johnson v. Royal Caribbean Cruises, Ltd., 802 F. Supp. 2d 1316, (S.D. Fla., 2011).)

In order to hold a cruise line liable for an injury, an injured passenger must show that the cruise line was negligent. In Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1070 (9th Cir. 2001) the court established that to recover for negligence, a plaintiff must establish:  (1) duty;  (2) breach;  (3) causation;  and (4) damages. In that case, the passenger filed a wrongful death action for her husband. The husband contracted pneumonia while on a trip from Athens to Bombay. Because of his prior history of heart disease, the ship's doctor recommended that he be taken to a land-based Intensive Care Unit either by docking at the nearest port or by helicopter evacuation.

The woman contacted medical care through their own insurer who sent a doctor that advised the couple to stay in Bombay, India instead of flying her husband to Singapore. The doctor provided inadequate care and services for the husband while the woman was assaulted and robbed at the hotel the insurance company arranged. The husband managed to improve at a facility, but ultimately died after a massive heart attack during a surgical procedure. The court, analyzing the wife's claims, stated that she failed to show that Princess cruise caused or could have caused her husband's complications that resulted in his death.

While the wife was unable to succeed in her claim against Princess, this case illustrates the main considerations of an injured passenger would have when trying to hold a cruise line liable for their negligence. Insured passengers must be sure they follow the limitations on filing a claim so that their negligence suit can move forward. Jurisdiction is generally limited to a few venues, including Washington.

Continue reading "Cruise Lines and Negligence in Maritime and Admiralty Law" »

Five crewmen were killed following a lifeboat drill on a British-operated vessel off the Coast of Spain. The drill had ended and the life boat proceeded to hoist back onto the ship. A cable snapped, causing the boat to fall 65 feet into the port upside down. Despite immediate action, the men perished as a result of the failed cable system.

When death occurs on a ship, whether off the coast of Washington or a European nation, many demographic facts are considered when compensation is sought for the loss of life. All five men were foreign nationals from developing countries - Ghana, Philippines, and Indonesia. The vessel was owned by a British company and the accident occurred while docked in Spain. Many decisions regarding where to file a legal claim will have to be made.

In the United States, the family seeking to file a law suit because of a maritime-related death will also have additional considerations based on the location of the fatal injury. If the injury occurred more than three nautical miles off the shore, then the federal Death On the High Seas Act (DOHSA) will pre-empt any state causes of action that a family member may try to pursue. This type of action can only be brought by a wife, husband, child, or dependent relative; and the recovery is limited to pecuniary damages, which have been found to be loss of support, services, and inheritance. These must be proven by supported facts with a reasonable amount of certainty to avoid speculation.

The initial purpose of the Act was to create remedy where there may be none. Courts had the difficult decision to either find that no remedy exists, or allow a traditional state wrongful death action. DOHSA was the legislature's attempt to restore uniformity to maritime law. Within the law itself, however, there are greater allowances for commercial aviation accidents. Those filing suit for fatal crashes that occur greater than 12 nautical miles from the shore of the United States can pursue non-pecuniary damages which includes loss of care, comfort, and companionship. DOHSA also allows foreign plaintiffs to sue in a foreign country for wrongful act, negligence, or default on the high seas. This allowance is to prevent companies from limiting their liability under the Act.

DOHSA can be filed in either federal or state court. If DOHSA does not apply, then the traditional remedies of wrongful death or survival actions can be pursued. In contrast with DOHSA, wrongful death damages in Washington are not limited to pecuniary, but can include punitive damages if malicious intent is proven.

Continue reading "Considering the Death On the High Seas Act in Washington After Recent Cruise Ship Lifeboat Accident" »

According to the 2012 "Safety and Shipping Review" compiled by marine insurer Allianz Global Corporate & Specialty (AGCS), maritime losses increased by approximately 17% for the year. In fact, there were 106 reported losses worldwide in 2012 compared to 91 in 2011.

Even though the report shows an increase in the number of reported losses for 2012, there is a continuing downward trend in major incidents. Over the 10 years between 2001 and 2011, the average number of losses has been 146 per year.

Topping the list for 2012 was the Costa Concordia disaster that occurred on January 13, 2012, off the coast of Italy. This major cruise ship disaster occurred when its captain attempted an unscheduled maneuver close to shore for local bystanders and struck a reef. There were over 4,000 people onboard, including 1,000 crew members. The tragic result was the loss of life for 32 passengers and nearly 100 injuries.

The sinking of the Rabaul Queen ferry on February 2, 2012 is an example of another disaster that happened during the year. The cause of that tragedy was an ominous combination of rough seas, overloading the vessel (the ferry was carrying 390 passengers and its maximum capacity was listed at 295), and improper maintenance. Sadly, over 140 people lost their lives.

Nearly two-thirds of the commercial shipping losses occurred in four maritime regions: South China, Indo China, Indonesia and the Philippines. This is primarily due to the concentration of commercial shipping in those regions. In the vast majority of the maritime losses, human error is to blame. Almost 50% of all losses in 2012 were caused by foundering, that is the sinking or submerging of a vessel. Wrecking or running aground accounted for 22% of the total. Interestingly, collisions between vessels caused only a slight number (6%) of 106 reported losses.

Reports such as the "Safety and Shipping Review" showing an overall downward trend in maritime losses is good news. This illustrates that the industry is continually working to develop more safety initiatives/regulations for the safety of maritime workers and passengers on ferries and cruise ships. However, this does not remove the remorse felt for all of those who were injured or died at sea.

There are different laws that apply for the recovery of damages for ferry passengers, cruise ship passengers, seamen and others who are injured or families who have lost loved ones at sea. There is a completely different system for bringing those claims to court and specific limitations that must not be ignored.

For example, most cruise ship passengers are required to provide the cruise line owner with written notice detailing any potential claims for injury or death within six months of the occurrence. This is a prerequisite to the filing of any lawsuit and part of the terms and conditions of the ticket contract. As unfair as this might sound, the notice requirement has generally been up held in our judicial system.

Continue reading "AGCS Report: 2012 Maritime Losses Increase 17% " »

The U.S. Coast Guard recently issued a news bulletin emphasizing the importance of life jackets and adequate sleep for crew members aboard commercial vessels at sea. In January, the Coast Guard took on two rescue operations off the coasts of Oregon and Washington to save crew members. Lack of sleep caused the commercial fishing vessels to run aground, forcing the U.S.C.G. to execute dangerous helicopter and motorboat rescue missions at night.

Fatigue also took the life of one crew member who fell overboard without a life jacket during a week-long crabbing excursion off the coast of Washington. A deckhand deftly followed coldwater survival training guidelines shouting, "Man Overboard!" while putting on an immersion suit and directing a fellow crew-member to throw a life buoy once the man was in sight. The captain turned the ship starboard to better locate the overboard man, and the deckhand jumped in the frigid waters to swim toward his colleague. The overboard crew member had already turned frigid and silent, and went underwater as the deckhand reached him. Despite his heroic attempt, the deckhand was unable to adequately grip the man due to the bulkiness of the immersion suit.

Fatigue is considered to be one of the leading causes of death on commercial shipping vessels. It is the operator's duty under the Jones Act (46 C.F.R. § 15.1111(a)) to provide rest periods for their workers. The 5th Circuit Court of Appeals recently considered several maritime issues in Manderson v. Chet Morrison Contractors, Inc. 666 F. 3d 373, 5th Cir. (2012), including whether the vessel operator failed to provide adequate rest as dictated by statute. The appeal stemmed from an underlying case where a dive vessel engineer became ill after 15 months aboard the ship, leaving suddenly to attend to ulcerative colitis, diabetes, and a liver condition. The engineer sued the vessel's owner, arguing that his working conditions of long hours and little sleep violated several statutes under the Jones Act and general maritime law.

The engineer had been awarded the full amount charged for the medical expenses as maintenance and cure. The ship owner contended that its obligation only extended to the actual amount of money paid to the hospital for the expenses, arguing against the court's application of the collateral-source rule to determine the amount of damages. The collateral source rule is a substantive rule of law that bars the liable party from reducing the amount of damages owed to a plaintiff by the amount of recovery the plaintiff receives from other sources of compensation that are independent of (or collateral to) the liable party. (See Davis v. Odeco, Inc., 18 F.3d 1237, at 1243, 5th Cir., (1994)). Cure is an implied term of maritime-employment contact where the ship owner is obligated to pay the medical expenses for seamen injured in its service. However maintenance and cure, unlike standard tort remedies, are not predicated on the fault or negligence of the ship owner.

The Court of Appeals ultimately agreed with the ship owner, and limited the award amount to cover the sum paid to the hospital, not the amount the hospital initially charged the engineer. They determined that the collateral-source rule was incompatible with the maritime remedies of maintenance and cure. The court looked to case law precedent that a seaman may only recover maintenance and cure for those expenses 'actually incurred', and found that the lower court went beyond the scope of cure in their monetary award.

Continue reading "U.S. Coast Guard Encourages Pacific Northwest Commercial Operators and Crews to Be Well-Rested" »

Although the final report will likely take a year to complete, the National Transportation Safety Board (NTSB) issued its preliminary findings on Friday, January 25, 2013. After interviewing witnesses, injured passengers and ferry crew members, a clearer picture is painted of the events leading up to the crash but no cause has been identified. Alcohol and blood tests were negative. The investigation is still ongoing, according to a NTSB spokesperson.

The crash of the 131 foot long SeaStreak Ferry occurred during the morning rush hour in Manhattan. The ferry normally runs between Atlantic Highlands, New Jersey and Lower Manhattan. It was on its second trip of the day after leaving New Jersey around 8:00 a.m. It has the capacity to carry several hundred passengers. There were 326 passengers onboard at the time and 85 were injured, two listed as serious.

Initial reports of the accident estimated the ferry was traveling much faster than determined by the NTSB, although the speed on impact was considerable. After traveling at a speed of 30 knots, or roughly 35 miles per hour, it had slowed to approximately 12 knots or 14 miles per hour upon impact with the dock.

The right hand side (starboard side) struck the pier leaving a huge gash in its side. The captain reportedly had maneuverability problems due to thrust control response, according to the NTSB. One passenger even commented that a ferry employee told her that there had been problems with this very issue prior to the crash. The captain said that the conditions did not give him time to warn the passengers over the public address system or sound a danger signal.

The SeaStreak was built in 2003 and had its main engines replaced in February 2012, along with new controllable pitch propellers and helm controls. It was placed back in service following a USCG inspection on July 24, 2012.

Some comparisons have been made between this accident and one occurring on October 15, 2003, when a Staten Island Ferry struck a maintenance pier at full speed. There were 70 injuries and 11 fatalities in that ferry crash. It was determined that the pilot of that ferry was incapacitated and he pleaded guilty to manslaughter.

An action was filed on January 19, 2013 by the owners of SeaStreak to limit damages to no more than the estimated $7.6 million dollar value of the vessel. An 1851 maritime law limits the liability for injuries or cargo to the value of the vessel.

The passengers and crew members injured in the SeaStreak crash are entitled to be compensated. Passengers are entitled to recover for injuries sustained as a result of the unsafe operation of the ferry or due to a defect onboard that caused an injury, such as a defective railing or foreign substances on the deck. Ferry workers are entitled to recovery under the Jones Act and federal maritime law. Injured persons may recover for lost wages, pain and suffering and medical bills related to their injuries.

Continue reading "New York City Ferry Crash is a Warning for What Could Happen in Washington" »

The 13th District of the U.S. Coast Guard has issued a news release advising that it has reluctantly called off the search for a commercial fisherman who was said to have fallen overboard. This decision was made after much deliberation and consideration, following a massive search covering over 91 square miles.

The accident occurred at roughly 1:30 a.m. northwest of Queets River, when a 56 year old fisherman fell overboard from the commercial fishing vessel SENJA. The weather at the time indicated there were six foot waves and a water temperature of 48 degrees. It was reported that the crewman was not wearing a personal floatation device (PFD) at the time he fell overboard.

The USCG recommends that all crew members of commercial fishing vessels wear PFDs at all times when they are at sea. If not, it is very difficult to locate them and it is also very difficult to put a PFD on them during an emergency situation. As in this case, if a crew member falls overboard without a PFD their chance of survival is greatly reduced.

The National Institute for Occupational Safety and Health (OSH) has repeatedly reported that the job of a commercial fisherman is one of the most dangerous jobs in America. One of the major causes of death among fishermen is drowning. Unfortunately, OSH statistics confirm that many fishermen die because they are not wearing PFDs when they fall overboard.

The largest number of commercial fishing casualties occur when the vessel capsizes, sinks, founders, runs aground or is involved in a collision. Regardless of the cause, the survival statistics are overwhelming for fishermen who enter the water. Only 12% of the fishermen survive going overboard without a PFD, compared to a 63% survival rate for those wearing one. According to OSH data, over 70% of the deaths of commercial fishermen were due to drowning.

Severe weather conditions and instability on the deck of a commercial fishing vessel make the job hazardous. Often the hazards are enhanced due to the lack of railing and safety lines that interfere with their work. Many old timers, as well as others, refuse to wear PFDs because they feel it interferes with their performance.

Those who fall overboard are subjected to ice cold water and risk hypothermia. This causes loss of muscle coordination, shivering, unconsciousness and sometimes death. However, there is a significantly better chance of rescuing a fisherman wearing a PFD; and a highly trained crew and captain can revive victims who have been in the cold water for 30 minutes or more.

Even though all commercial fishing vessels are required to be equipped with one survival suit or a wearable PFD properly sized for each person on board, accidents still happen and they will continue to occur.

Continue reading "USCG Calls Off Search For Commercial Fisherman" »