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Top 6 Things For Seamen And Maritime Workers To Keep In Mind After Suffering An Injury

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.

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It’s Time For A Raise: Eastern District Of Louisiana Awards Maintenance Rate Of $40.00 Per Day Despite Seaman’s $23.33 Per Day In Actual Expenses

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.

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More Mayhem on Gulf Oil Rig

An explosion tore through an oil platform in the Gulf of Mexico last Friday, triggering a fire and injuring at least 11 people, authorities said.

Rescue planes and helicopters are searching for at least two crew members who are still missing.

The incident happened roughly 20 miles off the coast of Grand Isle, Louisiana, on a platform used for production, not drilling. About 28 gallons of fuel spilled into the region, according to Coast Guard Response Division Chief Ed Cubanski. A half-mile oil sheen reportedly stretched near the area.

The 11 injured were airlifted off the platform, and nine additional crew members were safely evacuated off the platform, according to the Coast Guard. Four of the injured were taken to West Jefferson Medical Center in Louisiana where they were listed in critical condition, a hospital spokeswoman told CNN. Once they stabilized, they were scheduled to be transferred to the Baton Rouge General Burn Center.

The fire has been extinguished, according to a spokesman for Black Elk Energy, the Houston-based firm in charge of the platform. Federal authorities are investigating what triggered the explosion.

The incident came a day after the Justice Department announced that oil company BP would plead guilty to manslaughter charges stemming from the 2010 Deepwater Horizon explosion and oil spill in the Gulf of Mexico.

The London-based oil giant BP has agreed to pay $4.5 billion in government penalties.

Working in the oil industry is a dangerous business. The fatality rate for oil and gas workers is 15.8 deaths per 100,000 employees, according the Bureau of Labor Statistics. That’s nearly five times the national average.

In 2011, there were 11 fatalities in the oil and gas industry, according to BLS.

Most of the deaths were accidental, and criminal charges are never filed. The manslaughter charges brought against BP and two of its employees Thursday were rare. Only a handful of all workplace deaths in the United States result in criminal cases, according to the union AFL-CIO.

Anderson Carey Alexander is a maritime personal injury lawfirm. For over three decades, we have represented merchant seamen, fishermen, longshoremen and oil rig workers and their families. Attorneys at the firm are available for free consultation, without obligation, to explain the rights of injured maritime workers and the families of those lost at sea. We may be reached at 1-800-BOATLAW (262-8529) or on the web at www.boatlaw.com.

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Fishing Vessel Burns, Crew Rescued Off Oregon Coast

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.

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Fishermen Rescued After Sinking Near Kodiak

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

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Supreme Court Leaves Punitive Damages Award Intact

Injured seamen are entitled to maintenance, cure and unearned wages, regardless of fault. The shipowner’s duty to pay these benefits is a “sacred obligation.” Willful breach of the obligation gave rise to a claim for punitive damages. In 1990, however, the U.S. Supreme court decided the case of Miles v. Apex Marine Corp., 498 U.S. 19 (1990), prohibiting the award of “non-pecuniary” damages in cases brought under the Jones Act. The decision was interpreted by lower courts to prevent the award of punitive damages for wrongful failure to pay maintenance and cure.

Then in 2009, in the case of Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009), the Supreme Court reinstated the claim for punitive damages in maintenance and cure cases. The Court noted that claims for maintenance and cure, and for punitive damages in admiralty, existed under the General Maritime Law long before the passage of the Jones Act in 1920.

In reliance on Townsend, a claim for punitive damages for willful failure to pay maintenance and cure was upheld by the Washington State Supreme Court in Clausen v. Icicle Seafoods, Inc. 1012 AMC 660 (2012). The case involved a maritime employer that wilfully and callously withheld maintenance and cure from a crewmember injured aboard a fish processing barge. The employer deliberately withheld a medical examiner’s report confirming the plaintiff’s need for spinal surgery. The jury, appalled by the employer’s conduct, awarded $1.3 million in punitive damages. The defendant petitioned the U.S. Supreme Court for certiorari. Icicle Seafoods, Inc. v. Clausen, Cause No. 11-1475.

Yesterday, on the first day of its term, the Supreme Court denied certiorari, refusing to review the Washington State Supreme Court decision in Clausen.

Why did the Court deny certiorari? One interpretation, favored by plaintiffs, is that the Court impliedly ruled that the decision was sound. Another possiblilty, however, is that different justices had different reasons to deny review. So-called liberal justices may have considered the decision sound, while so-called conservative justices may not have wanted to take a case in which the factual context so compellingly cried out for punitive damages. Indeed, the trial court in Clausen stated that the defendant’s conduct reached “the zenith of reprehensibility.” This was hardly the ideal case for the conservative justices to use to abrogate a claim for punitive damages.

Anderson Carey Alexander has been representing injured seamen for over three decades. The firm recovered punitive damages for wrongful failure to pay maintence and cure before the remedy was withdrawn in the wake of the 1990 case of Miles v. Apex Marine. In one case, a federal jury made a six figure punitive damage award against the largest tugboat company in the world. We stand ready to prosecute claims for punitive damages again now that the remedy has been restored by the Atlantic Sounding v. Townsend case. Injured seamen are encouraged to learn their rights. Maritime lawyers at Anderson Carey Alexander are availble for consultation, without obligation, at 1-800-BOATLAW.

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Deadly Collision at Sea Near Hong Kong

A collision at sea near Hong Kong between a passenger vessel and a ferry killed at least 38. The Monday night crash was Hong Kong’s deadliest accident in more than 15 years, and the worst maritime accident in more than 40.

The ferry involved, the SEA SMOOTH, has a top speed of almost 45 kph (28 mph) and carries up to 200 passengers. At 8:23 p.m., it collided with the LAMMA IV, which was taking more than 100 employees of Power Assets Holdings Ltd. and their families to famed Victoria Harbor to watch a fireworks display in celebration of China’s National Day and mid-autumn festival.

The government said in a statement that 101 people were sent to hospitals; 66 were discharged, and four had serious injuries or were in critical condition.

The ferry was damaged but completed its journey, and some of its passengers were treated for injuries.

The government said 28 bodies were recovered overnight, and eight more victims were declared dead at hospitals. Two bodies found aboard the vessel Tuesday raised the death toll to 38, according to government statements. At least four of those killed were children.

Salvage crews raised the half-submerged LAMMA IV using three crane barges that surrounded it Tuesday.

At the same time, several dozen relatives of victims traveled by boat to take part in a traditional Chinese mourning ritual, praying alongside Taoist priests and tossing spirit money into the wind.

Though there was no immediate word about how the collision occurred on Hong Kong’s tightly regulated waterways, it appeared human error was involved. Both vessels should have been illuminated by running lights when they crashed near Lamma island off the southwestern coast of Hong Kong island. Crewmembers from both boats were detained and seven have been arrested on suspicion of endangering passengers by operating the craft unsafely.

Such large-scale accidents are rare for Hong Kong, a semiautonomous enclave off mainland China that has one of Asia’s most advanced infrastructures and economies with first-rate public services. The accident is the deadliest to strike the territory since a 1996 high-rise fire that killed 41, and the deadliest ferry accident since 88 people died during a typhoon in 1971.

Victor Li, deputy head of the company that owns Power Assets, was reported by Hong Kong media saying the firm would provide emergency payments of 200,000 Hong Kong dollars ($25,793) to the family of each person killed.

Li’s father, Li Ka-shing, is Asia’s richest man. Power Assets Holdings Ltd., one of several companies in the elder Li’s sprawling business empire, owns the Hong Kong Electric Co., one of the city’s two electrical utilities.

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Oil Rig Workers Injured in Fire

The Coast Guard confirmed that a W&T Offshore gas platform located in the Gulf of Mexico caught fire Wednesday morning, forcing three workers to evacuate.

Two of the workers suffered minor injuries as they evacuated the platform, which is located in 120 feet of water about 29 miles south of Terrebonne Parrish, La.’s Dernieres Barrier Island Refuge, said Petty Officer Jonathan Lally.

W&T Offshore’s Janet Yang said the accident occurred on an oil-processing platform, not a drilling rig.

Ying said she did not believe an active well was located at the site.

Lally said the fire was reported at 10:20 a.m. Five contracted response vessels spraying water on the platform had it extinguished by 2 p.m.

Lally said W&T officials reported that an inspection cover on a heater-treater valve cover blew out, causing the fire.

It also resulted in a hydrocarbon spill that caused a sheen 600 yards long by a half-mile wide to form. Lally said the workers were able to shut in the platform before evacuating, preventing additional pollution from entering the water.’

The sheen was still present, but Lally said reports indicated it was dissipating.

Anderson Alexander Carey is a maritime law firm which represents injured seamen. Crewmembers aboard oil rigs may be seamen entitled to unique rights of recovery under the Jones Act and the General Maritime Law. Inquiries can be made, without obligation, by calling 1-800-BOATLAW(2628529)or going to our website: www.boatlaw.com, or emailing boatlaw@boatlaw.com.

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Court Reinstates $2 Million Damage Award to Seaman’s Widow

The Virginia Supreme Court has reinstated a $2 million award it struck down earlier this year in an asbestos lawsuit against John Crane, Inc.

In March, the court vacated awards totaling more than $3 million in a lawsuit filed by Robert Hardick, who alleged exposure to asbestos while a Navy seaman, before he passed away. One portion struck down was a $2 million pain and suffering award.

Hardick’s widow Margaret asked for a rehearing of the decision, and on Sept. 14 the court reinstated the award.

“(W)e hold that in a general maritime survival action based upon the death of a seaman, we look to the Jones Act for guidance,” Justice Donald Lemons wrote.

“Because the Jones Act permits recovery for the losses suffered during a decedent seaman’s lifetime in a survival action, including pre-death pain and suffering, Hardick’s estate may recover for his pre-death pain and suffering under general maritime law.”

Anderson Carey Alexander is a maritime law firm that represents injured seamen and the families of those who perish at sea. We have recovered millions of dollars in compensation to assist spouses and children of deceased seamen. We can be consulted, without obligation, by calling 1-800-BOATLAW, or by emailing boatlaw@boatlaw.com.

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F/V MOONLIGHT MAID sinks

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.

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