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.
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.
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.
The U.S. Coast Guard rescued three crew members this morning who abandoned their burning fishing vessel, the 35-foot HAVANNA, and set out on a life raft about 17 miles west of Cannon Beach.
An MH-65 Dolphin helicopter crew flew up from Air Facility Newport to make the rescue. It located the three survivors in the life raft and lowered a rescue swimmer, who disconnected from the helicopter and swam to the raft.
The helicopter crew hoisted all three survivors and the rescue swimmer and flew them to Air Station Astoria, arriving at approximately 8:24 a.m. The crew members of the HAVANNA were transferred to local emergency medical service technicians.
A 47-foot motor lifeboat from Station Tillamook Bay was also on scene at the site of the burning vessel.
Petty Officer 3rd Class Nate Littlejohn said all three appeared to be in decent condition and were likely being checked out for potential hypothermia.
This is the 50th anniversary of the “Columbus Day Storm,” the most powerful extratropical storm of all time. It is an appropriate moment to contemplate the significance of fall weather patterns to the North Pacific marine industry.
Many years ago, a partner at the maritime law firm of Anderson Carey Alexander was a principal of a tug and barge company. He secured marine insurance for a tug to be operated in Puget Sound. The policy permitted the vessel to trade offshore in the summer, but not after October 15. He remembers the provision well, since the so-called “trading warranty” had to be amended to permit a barge to be towed from Portland, Oregon to Puget Sound in November.
At the time, October 15 seemed to be an arbitrary date. But years of experience have shown that on or about that date every year the weather in the North Pacific changes for the worse. This year is a dramatic example. According to University of Washington meteorologist Cliff Maas, the high pressure area which lingered over the Northwest for months is moving east. Beginning today, October 12, and continuing for the foreseable future, one storm system after another is likely to roll off the Pacific and batter the coast.
Fall can be a dangerous season at sea. Many fisheries are in full swing and mariners are exposed the perils of the sea, even as weather deteriorates with the approach of winter. At Anderson Carey Alexander, we have handled numerous maritime injury and death claims resulting, in part, from the particular perils of autumn.
In 1981, a fish processor returning from the Bering Sea at the end of the salmon fishing season foundered and sank, causing multiple lives to be lost. A couple of months later, a trawler capsized off the Oregon coast, resulting in the death of four crewmembers. Four years ago this month, a 92-foot trawler hurried to Dutch Harbor from the fishing grounds with a boatload of cod, attempting to outrun an approaching storm. The vessel sank under the impact of 55-90 knot winds and seas approaching 40 feet. The result, again, was the tragic death of crewmembers. (In the intervening years, innumerable autumn casualties gave rise to injury and death at sea.)
Marine casualties occur throughout the year, but for the North Pacific fishing fleet the fall seems to be a particularly dangerous season. Mariners are urged to take special care during the shortening autumn days to close and dog watertight hatches, make sure alarms are functioning properly, check out survival suits, rafts and EPIRBs, and generally “batten down the hatches.”
In other words, Beware the Ides of October.
The U.S. Coast Guard has reported that five fishermen were rescued from an island south of Kodiak early this morning after their 58-foot-long fishing vessel struck a rock and started taking on water.
According to Coast Guard spokesperson Petty Officer 1st Class David Mosley, the crew of the KODIAK ISLE contacted watchstanders just after midnight Thursday. They then donned survival suits and abandoned ship in a life raft that drifted ashore on Sitkinak Island, as the Coast Guard issued an urgent marine information broadcast and sent an MH-60 Jawhawk helicopter to the area.
“The helicopter crew arrived on scene at 2 a.m., spotted a flare from the fishermen, and safely hoisted the five men who were transferred to Kodiak with no reported injuries,” Mosley wrote.
Coast Guardsmen praised the Kodiak Isle crew’s preparedness, as well as the specific steps they took to assist their rescue.
“The fishermen took the proper steps to help ensure their safety during this emergency situation,” said Petty Officer 1st Class Lauren Brady, a Coast Guard Sector Anchorage watchstander. “They immediately alerted us that they had an emergency and needed help. They then put on survival suits and entered their life raft with flares and an emergency location beacon, which allowed the helicopter crew to quickly locate them.”
The KODIAK ISLE was still afloat as of 2:30 a.m. when the helicopter departed the scene, but another flyover will take place Thursday to locate the vessel and assess potential safety concerns. The vessel was reportedly carrying about 1,000 gallons of diesel fuel.
A nearby weather buoy reported winds of 10 to 20 mph
Coast Guard rescue crews have called off the search for a commercial fisherman who went missing after the fishing vessel MAVERICK sank off the coast of LaPush Friday morning, September 28, according to a Coast Guard spokesman.
A Coast Guard helicopter based at Coast Guard Air Station/Sector Field Office Port Angeles on Ediz Hook conducted the last search of the missing man on Saturday, said Petty Officer Nathan Bradshaw, Coast Guard spokesman in Seattle.
Based on the circumstances of the sinking and the amount of time the missing man has been in the water, Coast Guard officials are considering the man deceased, Bradshaw said.
The Coast Guard has not released his name.
The missing man was one of four crew members on the 40-foot commercial fishing vessel MAVERICK, which sank early Friday morning following a collision with the 90-foot F/V VIKING STORM roughly 30 miles off the coast of LaPush. The VIKING STORM is based out of British Columbia. The collision occurred outside of U.S. territorial waters.
The crew aboard the 90-foot VIKING STORM was able to rescue three of the four crewmen of the MAVERICK.
A Coast Guard motor lifeboat transferred the three survivors, described as in good condition Saturday, from a Coast Guard cutter on the scene of the collision to the Coast Guard slip at the Quileute Harbor Marina in LaPush, Bradshaw said.
The owner of the MAVERICK, Port Angeles resident Darby Dickerson, was one of the three crewman who survived the collision, said Gene Harrison, the assistant harbor master at the Quileute Harbor Marina, where the survivors were dropped off by the Coast Guard at about 4 p.m. Friday.
Harrison’s brother-in-law also fished on the MAVERICK and was also returned safely to LaPush, Harrison said.
Harrison also knows the missing man, but would not confirm any more details about him until the Coast Guard releases his name.
Harrison was not familiar with the crew of the 90-foot F/V VIKING STORM involved in the collision or the boat itself.
No one aboard the VIKING STORM was injured and the vessel suffered only minor scrapes and a dent to its bow.
The Coast Guard is conducting an investigation, while a release from the Transportation Safety Board notes a Canadian team will also try to determine what caused the collision.
Sources: Jeremy Schwartz, Peninsula Daily News &
The Canadian Press
This past weekend Coast Guard Sector Anchorage received a mayday call from crewmembers of the 110′ commercial fishing vessel, the F/V MOONLIGHT MAID. The fishing vessel encountered high winds and 13′ seas before when it began taking on water. At the time, the fishing vessel was more than 30 miles south of Resurrection Bay.
A Jayhawk helicopter crew from Coast Guard Air Station Kodiak launched and rescued the four fishermen from a life raft at 10:51 p.m. The managed to don their survival suits before abandoning ship. The men were safely transported to Seward at 1:03 a.m. Friday, with no reported injuries.
The skipper of a Kodiak-based fishing vessel ADVANTAGE died Friday after the boat sank, authorities said. One crew member was missing and two others were recovering from hypothermia.
Four helicopter searches failed to find the crewman missing from the 58-foot ADVANTAGE, Coast Guard Petty Officer 1st Class Sara Francis said. An airplane continued the search.
As first reported by KMXT-FM, a Coast Guard helicopter went looking for the vessel shortly after midnight Thursday when an emergency locator beacon signal was received.
Skipper Leif Bolan and two crewmembers were rescued from a life raft and taken to Providence Kodiak Island Medical Center. Providence Health and Services Alaska spokeswoman Crystal Bailey confirmed that Bolan had died.
None of those rescued was wearing a survival suit, Francis said.
The Advantage went down about 15 miles southeast of Kodiak Island.
By the time the helicopter arrived on scene, the vessel had already sunk and only a debris field remained.
“It looks like it sank fairly quickly,” Francis said.
At the time, the National Weather Service was forecasting 8-foot seas in the area.
Francis said it is too early to know why the fishing boat sank.
Source: Fairbanks Daily News-Miner.