JUNEAU — The captain of a sightseeing vessel that apparently struck a rock at Alaska’s Glacier Bay National Park and Preserve had been trying to get the vessel nearer shore to see brown bears, an official with the boat’s owner said Monday.
John Dunlap, a vice president with Allen Marine Tours, said the captain, after trying to maneuver closer to shore so passengers could see the one or more bears that had been spotted, at some point realized he was in shallower water and started to back up. But Dunlap said it was along a different track than the boat came in on, and the BARANOF WIND apparently hit a rock.
The Coast Guard said 72 passengers were rescued in Sunday’s incident. They were removed as a precaution as the BARANOF WIND took on some water. Dunlap said the stability of the vessel was not considered to be in jeopardy but given that some water was coming in, the primary concern was making sure everyone was safe.
A cruise ship in the area, Holland America’s VOLENDAM, used tenders to help remove most of the passengers; two, including one passenger who had been injured, were taken aboard a National Park Service vessel. Officials said the crew remained on board.
Coast Guard spokesman David Mosley said any injuries that were reported were minor. The capacity of the BARANOF WIND is about 150 people, Dunlap said.
Dunlap said the mishap occurred during the first half of what’s typically an eight-hour cruise, billed in a promotional flier as an opportunity to see “magnificent tidewater glaciers, ancient snow-capped mountains,” and a range of wildlife, including whales and coastal bears.
Albert Faria, the park’s chief ranger, called the incident “unique,” saying the BARANOF WINDand other vessels routinely pass through the area without problems. Dunlap said the accident occurred north of Russell Island in Tarr Inlet. Faria said this was the first incident of its kind that he’s aware of there.
The vessel was being brought to Sitka, where Allen Marine Tours has a shipyard. The company plans its own investigation.
Anderson Carey Alexander is a maritime law firm with attorneys licensed to practice in courts of Washington, Oregon and Alaska. We represent clients injured in every seagoing circumstance, whether they be commercial fishermen, tugboaters, merchant mariners, oil rig workers, or passengers on cruise ships and tour boats. We can be reached by phone, toll free, at 1-800-BOATLAW or online at www.boatlaw.com. Initial consultation is without charge or obligation.
The Alaska fishing industry tests the metal of American workers. Anyone who has watched “The Deadliest Catch” can appreciate the extraordinary demands of shipboard labor in the North Pacific. Not only crabbers but trawlers, longliners and processors are subjected to long hours in an environment more stressful than any encountered elsewhere in the civilian workplace. Yet they return each fishing season to Dutch Harbor, a port at the extremity of human habitation, to board vessels to be buffeted by the forces of nature for weeks and months at a time, while they engage in strenuous labor in lengthy shifts punctuated only by brief opportunities to retire to a cramped bunk in a tiny stateroon for a few hours rest.
Among Alaska fishermen, those whose native language is Spanish are notable for their grit, determination and resourcefulness. Without ethnic stereotyping, it is still fair to say that Hispanics are among the most diligent and dedicated shipboard employees in the Bering Sea.
At Anderson Carey Alexander, we have represented hundreds of injured seamen, including dozens of immigrants from Mexico and Central America. Our Latino clients have been among the most deserving of our considerable efforts on their behalf. They have often been first generation immigrants who came to the U.S. in search of opportunity, just as others have done for centuries. Some have sent money home to their native lands to support parents, spouses and children. Others have been able to establish households in the U.S. and support their children’s quest for education and advancement. When Hispanic fishermen have met with misfortune, we have been proud to assist them in securing fair and just compensation for their injury claims.
In our view, Latino immigrants are a boon to our culture and economy. We applaud measures to protect them from discrimination and to help those who are willing to engage in an orderly process to achieve legal immigration status.
The U.S. Supreme Court has just spoken on the subject of immigration law. In Arizona v. United States, decided yesterday, the Court struck down provisions of an Arizona statute which conflicted with federal law. The decision makes it clear that the federal government has the primary role on immigration.
We urge those in the fishing industry, who benefit from the tenacity and dedication of immigrant workers, to support candidates for federal office who propose a workable and honorable path to citizenship for all Latino immigrants.
Moving vessels Fairweather and Chenega are Alaska Marine Highway System’s (AMHS) first “fast” ferries. They are 235-foot long aluminum-hulled catamarans with standard service speeds of 32 knots. These ferries carry up to 250 passengers and 36 vehicles at a time. Their interior spaces have a combination of reclining airline-style seats, tables, video games, and full service snack bars. The Juneau-based Fairweather and the Cordova-based Chenega shuttle passengers through Alaska’s frigid waters. Both vessels were delivered as part of a $68 million contract with Robert Derecktor, the east coast shipyard that built the ferries, and MTU Friedrichshafen, the German manufacturer of the engines. Now, AMHS is suing Derecktor and MTU for breach of contract, warranty, and service obligations. Claiming both ferries have defective engines, AMHS asked the Alaska Legislature for $22 million, which would replace the engine of only one ship.
In March of last year, AMHS filed suit against the ferries’ builder and engine manufacturer, alleging the vessels had flawed engines. Ferry officials claim there are defects in the engine blocks, cylinder liners, gear reduction units, and other vessel components. They say the extensive engine damage was “inherent” in their poor design. MTU has denied the allegations and Derecktor filed a counter-claim, contending AMHS improperly refused to release the warranty bond on Chenega and still owes over $820,000 in contract retentions and repair work. Parties on both sides are setting production deadlines for discovery and AMHS is actively seeking proposals for legal counsel to immediately begin assisting the Attorney General in preparing for trial. The 21-day trial, venued in Juneau Superior Court, is scheduled to begin on September 10, 2012.
A “latent defect,” as alleged in this case, has a different meaning in maritime law. Unlike in common law, a latent defect in marine vessels is an “unknown defect not discoverable by reasonable and prudent inspection.” Marine insurance policies often provide coverage for loss and damage caused to the vessel as a result of a latent defect. Latent defects include faulty material and faulty workmanship, and damage caused by faulty design. Here, AMHS alleges that patent defects in the Fairweather and Chenega’s engine blocks were not discoverable by reasonable inspection. Even if the defect has not yet manifested itself, Direcktor and MTU can still be held liable for faulty material or components that “eventually become apparent as time goes on and parts begin to fail.” This may apply to the Chenega because it was built after the Fairweather and has experienced fewer engine problems.
The Fairweather has recently undergone short-term engine repairs in Ketchikan while the Chenega operates in Prince William Sound. The engines on both vessels started showing signs of excessive wear that could eventually stop them from sailing in a few years. State officials previously sought a preliminary injunction forcing the builders to provide replacement engines, but the judge has not yet ruled on the motion. Trial has also been postponed in hopes that the parties can reach a negotiated settlement in this case.
As noted in our last blog post, in the 1991 U.S. Supreme Court case of Carnival Cruise Lines v. Shute, a “choice of forum” clause in a cruise ship ticket was upheld.
In dissent, Mr. Justice John Paul Stevens explained the purpose of choice of forum clauses like the one contained in the COSTA CONCORDIA tickets:
“Clauses limiting a carrier’s liability or weakening the passenger’s right to recover for the negligence of the carrier’s employees come in a variety of forms. Complete exemptions from liability for negligence or limitations on the amount of the potential damage recovery, requirements that notice of claims be filed within an unreasonably short period of time, provisions mandating a choice of law that is favorable to the defendant in negligence cases, and forum-selection clauses are all similarly designed to put a thumb on the carrier’s side of the scale of justice.”
In the Shute case, the plaintiff was a lady from Arlington, Washington. She and her husband purchased tickets through a local travel agent. She was injured aboard the Carnival ship TROPICALE, enroute from Los Angeles to Puerta Vallarta, Mexico. The ticket called for suit in Florida.
The Ninth Circuit Court of Appeals ruled that the forum selection clause was unenforceable. The Supreme Court reversed, relying on it’s previous opinion in Bremen v. Zapata Offshore (1972). That case involved a clause in a contract for towage of an oil rig from Louisiana to a location in the Adriatic Sea, calling for litigation in London. To those of us representing injured passengers, it seemed a stretch to extend the Bremen doctrine to require a lady in Arlington to travel to Florida to seek redress for injury.
Justice Stevens would have none of it. Joined by Justice Marshall, he said that the clause in question was “the product of disparate bargaining power between the carrier and the passenger” which “undermine[d] the strong public interest in deterring negligent conduct.”
If the courts will not permit suit against Carnival in this country, the Congress should act to rectify the injustice resulting from Carnival v. Shute and its progeny.
Politics in Alaska is a brand new game for both Democrats and Republicans. The change comes on the heals of the recent indictment of long time Alaska Senator Ted Stevens. Two years ago, Ted Stevens was still the powerful long ruling senator from Alaska, delivering billions of federal dollars to his home state, when federal agents raided the offices of six state legislators. One of the state legislators was Ben Stevens, the senator’s son. The implications of this turn of events was staggering. The elder Stevens could be implicated. Change in Alaska came quickly. Sarah Palin, a young political upstart, was elected governor, and soon after Ted Stevens and the Republicans ceded control of the US Senate to the Democrats. Following Ted Stevens’ recent indictment it is suddenly a new generation of fellow Republicans who hope to control the state of Alaska. Although Republicans have long dominated the state of Alaska, their corruption, and overall lack of understanding of the world, has made it less likely that they will be able to cling to power.
Democrats, often only bit players in Alaska, see an opportunity to take a Senate seat for the first time in decades. For years Alaska has been dominated by Republicans. As a consequence of this, they have had little to counterbalance the corruption and ignorance that are the hallmarks of their right-wing ideology. While the electorate is not pleased with Mr. Stevens, he is still expected to win reelection in the November election. However, Mr. Stevens will be hard pressed to continue to serve in the Senate if he is convicted of the multiple felony charges that he faces. Other Republicans and Democrats are licking their chops at the prospect of taking over the long standing establishment that Mr. Stevens and his family have created.