By: Dave Anderson
The ALASKA JURIS, a factory trawler owned and operated by the Fishing Company of Alaska, began to sink in the Bering Sea on Tuesday, forcing the crew of 46 to don survival suits and abandon ship. The Coast Guard says the ship had a problem in the engine room that led to flooding. As the ship flooded, it reportedly lost power and threw the propeller into reverse. The incident occurred near Kiska Island, about 690 miles west of Dutch Harbor, Alaska.
The crew are reported to have been rescued by Good Samaritan vessels, the SPAR CANIS and the VIENNA EXPRESS, and transported to Adak Island. By the time rescuers found the crew, it is reported that sailors had been unable to reach lifeboats and were bobbing in frigid waters. The Coast Guard plans to conduct a flyover on July 28, 2016, to determine whether the vessel is still afloat and if any pollution spilled.
The Fishing Company of Alaska is the same company that owned and operated the ALASKA RANGER, another factory trawler that sank in the Bering Sea on March 23, 2008. Five people died in that tragedy. Reports have surfaced of other cases of injury and death aboard Fishing Company of Alaska vessels, including the ALASKA JURIS. According to U.S News, in March 2012, a crewmember aboard the JURIS died after a cable snapped and struck him in the head, and days later another deckhand sustained a head injury when another cable snapped. U.S. News also cites an instance of crewmembers being exposed to ammonia leaks in May of 2012.
The Fishing Company of Alaska has an unenviable safety record. The firm of Anderson, Carey & Williams has prosecuted numerous claims against the Company over the past couple of decades. In addition to representing crewmembers aboard the ALASKA RANGER who sustained physical and emotional injuries, the firm has represented a number of other crewmembers injured due to negligence and unseaworthiness of vessels owned and operated by the Fishing Company of Alaska.
We await the results of the initial investigation by the Coast Guard, but the likelihood of a vessel sinking in expectable, indeed benign sea conditions in the middle of summer without some fault in the condition or operation of the vessel seems remote.
Anderson Carey & Williams has represented seamen and their families for over thirty-five years throughout the United States. With offices in Seattle and Bellingham, Washington, and Portland, Oregon, the attorneys of Anderson Carey & Williams are collectively admitted to practice in Washington, Alaska, Oregon, California, Florida, Arizona, and Washington D.C.
Video Credit: Associated Press
Marineros extranjeros lesionados en buques de bandera estadounidense o navío que extensivamente salen de los puertos estadounidenses, a menudo se les aconseja de no tomar acción legal en las cortes estadounidenses, cuando en realidad en estos tipos de casos el marinero extranjero frecuentemente tiene la protección marítima de la Ley Jones (Jones Act).
La Corte Suprema de EE.UU. ha articulado una prueba de dos puntas para determinar si el marinero puede utilizar la Ley Jones. Estas son: (1) Si las responsabilidades del empleado contribuyen con la función de la embarcación o el cumplimiento de la misión; y (2) si el marinero tiene una conexión con la embarcación de navegación que sea sustancial en términos de su duración y su naturaleza. Claramente no está el requisito de ser ciudadano o residente estadounidense.
Ya sea la cuestión si las leyes estadounidenses o las extranjeras debiesen aplicarse a un caso de lesiones marítimas, esta se basa, entonces, en la trilogía de la Corte Suprema basada en los casos Lauritzen v Larsen, 345 EE.UU. 571 (1953); Romero v Terminal Internacional operativo Co., 358 EE.UU. 354 (1959); y Helénica Lines Ltd. v. Rhoditis, 398 EE.UU. 306 (1970). Bajo estos casos, los siguientes ocho puntos determinarán la ley applicable:
1. La lealtad nacional o domicilio del demandante;
2. El lugar del contrato;
3. La lealtad nacional del dueño del buque demandado;
4. La ley de pabellón (bandera);
5. El acceso al tribunal (forum) en el extranjero;
6. El lugar del hecho ilícito;
7. La ley del tribunal; y
8. La base de operaciones del dueño y buque demandado
Los factores anteriores no son de importancia definitiva o comparable. En general, la ley de pabellón y dónde se ubica la base de operaciones del dueño del buque tendrá más peso en la determinación. En Lauritzen, la Corte Suprema describió que la ley de pabellón tiene una “importancia fundamental” en la determinación de la ley aplicable. En Rhoditis, la Corte Suprema sostuvo que pese a la bandera griega de la nave demandada, la base de operaciones en Nueva York favorece más el uso de las leyes de Estados Unidos.
Pese a que la bandera del buque es frecuentemente de “importancia fundamental”, el hecho que los dueños de los buques estadounidenses a menudo registran sus naves afuera de los Estados Unidos con cortes percibidas de verlos más favorables (“forum shopping”), este hecho también debe tomarse en cuenta. Como la Corte Suprema en Rhoditis explicó, “la fachada de la operación debe ser considerada secundariamente, a comparación de la verdadera naturaleza de la operación y dar una mirada objetiva sobre los contactos operativos verdaderos que la nave y su dueño tienen con los Estados Unidos.”
En suma, cuando el buque sujeto alza la bandera de Estados Unidos u opera ampliamente desde los Estados Unidos, a menudo existe una plataforma sólida para afirmar que se aplique la ley de Estados Unidos y que un tribunal del mismo debería mantener la jurisdicción, no importa si el marinero es ciudadano estadounidense o de otra nación.
En muchos casos, los marineros extranjeros tienen los mismos derechos bajo la ley marítima como un ciudadano de Estados Unidos y, a menudo deben considerar llevar a cabo una acción legal en un tribunal estadounidense.
Anderson Carey & Williams (1-800- BOATLAW) ha representado a los marineros y sus familias por más de 35 años en los Estados Unidos. Con oficinas en Seattle y Bellingham, Washington y Portland, Oregón, los abogados de Anderson Carey & Williams están colectivamente admitidos para ejercer el derecho legal en Washington, Oregón, Florida, Alaska, California, Arizona y Washington DC.
Foreign seamen injured on U.S. flagged vessels or vessels operating extensively out of U.S. ports are too often dissuaded from pursuing an action in U.S. courts, when in such cases, the particular foreign seaman is often protected under the Jones Act and U.S. maritime law.
The U.S. Supreme Court has articulated a two-prong test to determine seaman status under the Jones Act: (1) An employee’s duties must contribute to the function of the vessel or the accomplishment of its mission; and (2) A seaman must have a connection to a vessel in navigation that is substantial in terms of both its duration and its nature. Noticeably absent in this test is any requirement of U.S. citizenship or residency. As the Second Circuit described in Kyriakos v. Goulandris, “when Congress used the word ‘seamen’ in the Jones Act it employed a word of general application, embracing men of any nation who sail the seas. Had it wished to limit the application of the statute to seamen of American citizenship or residence, the words to effectuate the limitation were at hand.”
Despite its irrelevancy for seaman status under the Jones Act, injured foreign seamen bringing suit in U.S. courts are still often subject to motions by defendant vessel owners for dismissal on forum non conveniens grounds, which is a discretionary power that allows U.S. courts to dismiss a case when the plaintiff’s chosen forum would impose a heavy burden on the defendant or the court, and an adequate alternative forum is available (such as in the foreign plaintiff’s country of citizenship). The first step in determining whether an action should be dismissed on forum non conveniens grounds is to determine whether United States law should be applied to the case.
Focusing on this threshold question, whether United States or foreign law should apply to a maritime injury case is governed by the Supreme Court trilogy of Lauritzen v. Larsen, 345 U.S. 571 (1953); Romero v. International Terminal Operating Co., 358 U.S. 354 (1959); and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970). Under these cases, the following eight factors determine the choice of law:
- The allegiance or domicile of the plaintiff;
- The place of the contract;
- The allegiance of the defendant shipowner;
- The law of the flag;
- The accessibility of the foreign forum;
- The place of the wrongful act;
- The law of the forum; and
- The defendant shipowner’s base of operations.
The above factors are not of equal or even comparable significance. Generally the law of the flag and the defendant shipowner’s base of operations weigh most heavily in the determination. In Lauritzen, the Supreme Court described the law of the flag as of “cardinal importance” in determining applicable law. In Rhoditis, the Supreme Court held that the defendant’s New York base of operations favored U.S. law despite the ship’s Greek flag. On the other hand, the place of the alleged wrongful act, the inaccessibility of a foreign forum, and the law of the forum are seldom relevant to the choice of law analysis.
While the vessel’s flag is often of “cardinal importance,” the fact that U.S. shipowners often forum shop and register their vessels outside of the United States must also be taken into account. As the Supreme Court in Rhoditis explained, “the façade of the operation must be considered as minor, compared with the real nature of the operation and a cold objective look at the actual operational contacts that this ship and this owner have with the United States.”
In sum, when the subject vessel flies the U.S. flag or operates extensively out of the United States, there is often a strong basis for asserting that U.S. law applies and that an U.S. court should retain jurisdiction, no matter whether the seaman is an U.S. citizen or a citizen of another nation. Despite limited exceptions to the restriction on recovery by non-U.S. citizens and non-resident aliens for incidents in waters outside of the U.S. involving the exploration, development, or production of offshore mineral or energy resources set forth in 46 U.S.C.A. section 30105, foreign seamen injured on U.S. flagged vessels or vessels operating out of U.S. ports, in many instances, have the same rights under U.S. maritime law as an U.S. citizen and should often consider pursuing an action in an U.S. court.
Most importantly, foreign seamen and their families should not be dissuaded against filing suit in the United States without first consulting with an experienced maritime attorney.
Nicholas J. Neidzwski is an associate in the Bellingham and Seattle offices of Anderson Carey & Williams, reachable via phone at 1-800-BOATLAW or via e-mail at email@example.com Anderson Carey & Williams has represented seamen and their families for over thirty-five years throughout the United States. With offices in Seattle and Bellingham, Washington, and Portland, Oregon, the attorneys of Anderson Carey & Williams are collectively admitted to practice in Washington, Oregon, Florida, Alaska, California, Arizona, and Washington D.C.
After an accident, your world can quickly turn upside down. With the stress of worrying about your injuries and your ability to work, you may inadvertently do something that can hurt your future legal case. There are actions and inactions that can impact your chances of receiving reasonable compensation for the losses caused by your injuries.
Following an accident, keep the following in mind:
- Do report your accident to your supervisor. Even if you don’t notice the severity of your injury until the next day, it’s important to complete an accident report or make an entry in the vessel’s logbook. Ask for a copy of anything you sign. If your vessel has a medical officer, speak with him or her about what care is available onboard and discuss how long you can hold out for professional help at the next port.
- Do see a doctor as soon as you’re able after an accident. Obtaining the care you need is your primary concern. Make sure to explain to the doctor or nurse how your injury occurred. This will assist the physician in diagnosing your condition and also creates another level of documentation for your injury claim. You are entitled to be treated by a doctor of your choosing. Under the Maintenance and Cure doctrine, medical expenses will be covered by your employer.
- Do not give a statement, official or otherwise, to your employer or their insurance company. While you may have a positive relationship with other crew members, this does not mean they are on your side. Your words may be used to build a case against you by your employer and its insurance company.
- Do consult with an attorney before agreeing to a settlement. Maritime businesses and their insurance companies may be only concerned with their profits and bottom line. Paying you fair and honest compensation for your losses is not how insurance companies make money. They may shortchange you, leaving you high and dry down the road. An experienced attorney will make sure you’re not being taken advantage of.
- Do not go back to work until you are physically and mentally recovered. You may feel pressure from an employer to hurry back. Do not return to work without clearance from your personal physician. You do not want to aggravate your injuries and potentially sustain permanent damage. If you are pursuing a legal claim, consult with your attorney about your options.
- Do file a maritime accident claim as soon after the accident as possible. Not only are you limited in the time you can act and file a claim after an accident, a lengthy delay can weaken your case in some situations. Keep in mind that certain evidence, statements, and documentation are time-sensitive and can affect your available legal options.
Speak with a maritime lawyer who you can trust to represent your interests and can give you legal advice that will help you navigate your general maritime law and Jones Act claims.
The Superior Court of New Jersey in Latter v. 3M Company, No. L-10370-08, 2015 WL 868048 (March 3, 2015) reversed the trial court’s grant of summary judgment against a deceased seaman, Mr. Henry Latter. Mr. Latter died from mesothelioma as a result of asbestos exposure which Mr. Latter alleged occurred in part while he was working aboard defendants American Atlantic Co.’s and Week Marine, Inc.’s (collectively “Weeks”) dredges from 1962 through 1978. The central issue in Latter v. 3M Company was whether a triable issue existed as to whether Mr. Latter suffered such claimed exposure on Weeks’ dredges.
Following his mesothelioma diagnosis, Mr. Latter filed suit against Weeks and many other non-maritime defendants stemming from his exposure to asbestos throughout the course of his career. Against Weeks, Mr. Latter asserted a Jones Act negligence claim and a general maritime unseaworthiness claim. Weeks moved for summary judgment, arguing that Mr. Latter did not establish that its dredges were unseaworthy or that it failed to provide a safe workplace. Mr. Latter opposed the motion based upon Mr. Latter’s deposition testimony, as well as certain documents which included a schematic of one of the dredge’s exhaust system showing that asbestos was to be used to insulate the vessel’s pipes and a manual showing that another dredge contained winches for propulsion which required asbestos. Expert testimony was also introduced which generally opined that Mr. Latter’s mesothelioma was “a result of his occupational exposure to asbestos.” Despite this evidence, the trial court ultimately found that Mr. Latter was unable to “establish a reasonable inference that asbestos was actually present on the vessels he worked on or that [he] was actually exposed to asbestos.”
The Superior Court in Latter v. 3M Co. reversed the trial court and held that the record as a whole established a triable issue as to whether Mr. Latter was exposed to asbestos or asbestos-containing products on Weeks’ dredges. In so holding, the court reaffirmed the “featherweight causation standard” of a Jones Act negligence claim:
“Thus, a seaman must establish that his employer was negligent and that this negligence was a cause, however slight, of his injuries. This test is often called a featherweight causation standard because the quantum of evidence necessary to support a finding of Jones Act negligence is less than that required for common law negligence, …. and even the slightest negligence is sufficient to sustain a finding of liability.” Id. at *4 (citing Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9th Cir. 1993)).
The Latter court also reaffirmed the established principle that unseaworthiness (separate from Jones Act negligence) is a strict liability claim, and a shipowner has an absolute duty to provide a seaworthy vessel. The court further reaffirmed that “[a] seaworthy ship is one reasonably fit for its intended use and the actual or constructive knowledge of an unseaworthy condition [by the shipowner] is not essential to its liability.” Id. at *4 (citing Ribitzki v. Canmar Reading & Bates, Ltd., 111 F.3d 658, 664 (9th Cir. 1997)).
Latter v. 3M Co. provides yet another example of the general unwillingness of courts to grant summary judgment with respect to Jones Act negligence and unseaworthiness claims. Seamen should be cautious whenever an insurance company or vessel owner tries to downplay their case of liability, and should always consult with experienced maritime counsel prior to entering into any settlement discussions.
Please visit our website to learn more about maritime law and your options after sustaining and injury caused by employer negligence.
Without a showing of any fault, a shipowner under general maritime law has a duty to provide maintenance, cure, and unearned wages to a seaman who becomes ill or is injured while in the service of the ship. Aguilar v. Standard Oil Co., 318 U.S. 724, 730-31 (1943). “Maintenance” is traditionally defined as a “living allowance for food and lodging”; “cure” is the payment of medical expenses incurred in treating the seaman’s injury or illness; and “unearned wages” are wages for the period from the onset of the injury or illness until the end of the voyage. Dean v. Fishing Co. of Alaska, Inc., 177 Wash.2d 399, 406 (2013). The shipowner’s duty to pay maintenance and cure continues until the seaman reaches maximum medical improvement, which is reached “when the seaman recovers from the injury, the condition permanently stabilizes or cannot be improved further.” Dean at 406. A shipowner’s duty to pay maintenance and cure is “virtually automatic.” Baucom v. Sisco Stevedoring, LLC, 506 F.Supp.2d 1064, 1073 (S.D. Ala. 2007). Punitive damages and attorneys’ fees may be awarded upon a showing of a shipowner’s willful and arbitrary refusal to pay maintenance and cure. Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009).
The amount of maintenance provided to a seaman is frequently in dispute after a seaman becomes ill or injured while in the service of the ship. Many insurance carriers or vessel owners still often try to set a maintenance rate based solely upon the seaman’s actual living expenses. This approach has been consistently rejected by many different U.S. jurisdictions, which instead consider the “reasonable amount of maintenance.” Barnes v. Sea Hawaii Rafting, LLC, 16 F.Supp.3d 1171, 1177 (D. Haw. 2014) (“In other words, if a seaman’s actual expenses for rent are quite low because he cannot afford adequate housing, as appears to be the case here, this does not mean that he is not entitled to a reasonable amount of maintenance.”); Hall v. Noble Drilling, 242 F.3d 582, 589-590 (5th Cir. 2001); Fuller v. Calico Lobster Co., Inc., 527 F.Supp.2d 184, 187 (D. Mass. 2007).
Most recently, the Eastern District of Louisiana in Jefferson v. Baywater Drilling, LLC, No. 14-1711, 2015 WL 365526 (E.D. La. January 27, 2015) found that a seaman, plaintiff L.B. Jefferson, was entitled to recover maintenance at the rate of $40.00 per day when Jefferson’s actual expenses only totaled approximately $700 per month, or $23.33 per day. The case arose from a disabling skin condition which Jefferson alleged he contracted on July 16, 2014 while working aboard the IDB CAILLOU. The court considered whether Jefferson was entitled to maintenance and cure, and if so, whether the denial of these benefits was unreasonable, willful, or wanton.
Following release from a hospital after surgery, Jefferson moved in with his sister and was responsible to pay the household bills, including groceries, cable, light and gas, which totaled $23.33 per day. In calculating Jefferson’s maintenance rate, the court noted Jefferson’s “feather light” burden of proving his actual expenses of $23.33 per day and relied upon the following three-part test established in Hall v. Noble Drilling for determining the amount of a maintenance award:
1. A court estimates the plaintiff’s actual costs of food and lodging, and the reasonable cost of food and lodging for a single seaman in the plaintiff’s locality.
2. The court then compares the above actual versus reasonable costs to each other. When actual expenses exceed reasonable expenses, the court should award reasonable expenses. Conversely, when reasonable expenses exceed actual expenses, ordinarily the court should award actual expenses.
3.But, if reasonable expenses exceed actual expenses, the court inquires whether the plaintiff’s actual expenses are inadequate to provide him with reasonable food and lodging. When actual expenses are inadequate, the court should award reasonable expenses.
In applying the above test, the court found that Jefferson’s reasonable expenses totaled $40.00 per day. Even though the court noted that in this scenario (where reasonable expenses exceeded actual expenses), a maintenance award should generally not exceed actual expenses, the court found that “no reasonable seaman could live on $23.33 per day” and held that Jefferson was entitled to recover maintenance at the rate of $40 per day. Critically, the court noted in further support of this ruling that “[t]he Court’s research indicates that $30 per day is the lowest maintenance award approved by any court in this District since the year 2000.” See Conclusion Of Law No. 14 & Footnote No. 32. The court further held that the investigation of Jefferson’s case was “impermissibly lax” and that the denial of maintenance and cure was arbitrary and capricious. Therefore, the court ruled that Jefferson was entitled to compensatory damages, punitive damages, and attorneys’ fees.
Jefferson v. Baywater provides the most recent illustration of the unwillingness by courts to impose low maintenance rates on seamen, even when a seaman’s actual expenses could arguably support a lower maintenance award. Maintenance rates set by vessel owners and insurance companies should be carefully analyzed with the help of experienced maritime law attorneys to ensure the highest possible maintenance rate for the injured seaman. You may be entitled to a maintenance rate adjustment and not yet know it.
Hurricane Sandy, which is stirring up waves as large as 32 feet high according to buoy readings, is also giving a wild ride to passengers on at least five cruise ships.
Captain Vito Giacalone of Carnival Cruise Lines told ABC News via telephone that the storm is getting intense.
“We are navigating through some serious weather, but we’re not experiencing any issues. The vessel is very capable,” he said.
The five cruise ships in the waters that Sandy is churning today are the Aiduluna, the Carnival Miracle, Explorer of the Seas, the Norwegian Jewel and the Queen Mary 2, which is heading to the United Kingdom.
Daniel Gonzales disembarked from the Disney Dream on Sunday, saying everyone on the ship was getting sick from the waves.
“The ship was going back and forth. It was really scary,” said Gonzales.
Cruise ships now out in the waters are being forced to re-route and attempt to ride out the storm throughout the week, and cruise companies are delaying departures and arrivals, and have even cancelled trips.
The Coast Guard towed the 40-foot fishing vessel JAYDEN RAY and its crew to safety early this morning after she ran aground at LaPush, about 3 miles north of the mouth of the Quillayute River, on the Olympic Peninsula.
The Coast Guard received a mayday call from the four-member crew of the JAYDEN RAY at 2:20 a.m., after the vessel washed up on rocks and was unable to deploy its anchor.
A helicopter crew from Air Station Port Angeles and a 47-foot motor lifeboat crew from Station Quillayute River at LaPush were dispatched. The motor lifeboat crew was able to navigate through the rocks and throw over a towline at approximately 3:30 a.m., after receiving illumination from a spotlight aboard the helicopter.
The motor lifeboat crew took the fishing vessel and its crew members in tow and transferred them back to LaPush where a post search-and-rescue boarding was conducted. According to a Coast Guard spokesman, the cause of the grounding is under investigation.
This entry is posted in connection with the tragedy in the Connecticut elementary school last Friday. Nobel Prize winning Irish poet Seamus Heaney speaks to the sadness felt by the families in Connecticut and by all of us.
I sat all morning in the college sick bay
Counting bells knelling classes to a close.
At two o’clock our neighbors drove me home.
In the porch I met my father crying–
He had always taken funerals in his stride–
And Big Jim Evans saying it was a hard blow.
The baby cooed and laughed and rocked the pram
When I came in, and I was embarrassed
By old men standing up to shake my hand
And tell me they were ‘sorry for my trouble,’
Whispers informed strangers I was the eldest,
Away at school, as my mother held my hand
In hers and coughed out angry tearless sighs.
At ten o’clock the ambulance arrived
With the corpse, stanched and bandaged by the nurses.
Next morning I went up into the room. Snowdrops
And candles soothed the bedside; I saw him
For the first time in six weeks. Paler now,
Wearing a poppy bruise on his left temple,
He lay in the four foot box as in his cot.
No gaudy scars, the bumper knocked him clear.
A four foot box, a foot for every year.
Posted in Misc.