Recent Updates
August 30, 2010
Alaska Fishing Boat Sinks After Hitting Iceberg; Crew of Three Saved By Nearby Vessels
August 26, 2010
Tug Boat Deckhand Suffers Head Injury
August 12, 2010
Marine Electrician Recovers $740,000 Jones Act Verdict After Fall From Ladder
August 12, 2010
Crewman On Fishing Vessel RONDYS Suffers Head Injury
August 09, 2010
Capsized Charter Boat Found Off Vancouver Island
August 04, 2010
Fisherman Suffers Head Injury Off Oregon Coast
July 29, 2010
Court Rules Statements In Crewman's Accident Report Not Admission of No Fault
July 28, 2010
Seattle Fishing Vessel Aground in Prince William Sound
July 09, 2010
Alaska Fishermen's Fund Benefits Increased to $10,000
July 09, 2010
Price Fixing Suit Filed Against Pacific Seafoods
Legal Cases and Concerns
Court Rules Statements In Crewman's Accident Report Not Admission of No Fault
Posted by: James M. Beard
July 29, 2010
A Court has denied the motion of a vessel owner, Atlantic Soundings, to dismiss a deckhand's Jones Act negligence claims. The case involves a hand injury suffered by a deckhand who was tying the vessel to a pontoon when his hand became caught in the bite of the line.
In support of their motion to dismiss the deckhand's claims, Atlantic Soundings relied upon a written accident report signed by the deckhand on the day of his injury. In the accident report the deckhand stated that his injury was the result of an accident and no one was at fault for his injury. Atlantic Soundings argued this was an admission by the deckhand that there was no liability and, therefore, his case should be dismissed. The Court rejected this argument stating: "Mr. Parker's alleged admission that his injury was purely an accident occurred right after his injury and his judgment might have been affected by the injury. Thus, the injury report is not dispositive on the issue of the Defendant's (Atlantic Soundings) negligence. There are enough facts in the record to support a potential finding of negligence on the part of Atlantic Soundings...."
Alaska Fishermen's Fund Benefits Increased to $10,000
Posted by: James M. Beard
July 09, 2010
The State of Alaska has amended the Alaska Fishermen's Fund to increase benefits to up to $10,000 for crewmen injured on shore or in Alaska State Waters. The previous limit on benefits had been $2,500. The Alaska Fishermen's Fund is funded through Alaska crewmen licenses and permits.
Price Fixing Suit Filed Against Pacific Seafoods
Posted by: James M. Beard
July 09, 2010
A class action law suit has been filed against seafood giant Pacific Seafoods alleging the company has engaged in unfair business practices to fix prices for Northwest fishermen. The suit seeks in excess of $500 million dollars in damages. The suit was filed in United States District Court in Portland in late June. Pacific Seafoods controls a large share of the shoreside fish processing plants in Oregon and Washington and owns a fleet of vessels. Pacific Seafoods reportedly has gross revenues of one billion dollars per year and employs 1,500 to 2,000 employees. Frank Dulcich, CEO of Pacific Seafoods, reportedly owns 54 companies involved in the Pacific Northwest fisheries. The fishermen bringing the suit against Dulcich's company allege he has created a monopoly and anticompetitive environment in crab, shrimp, groundfish and whiting fisheries. Pacific Seafoods denies the allegations of the complaint.
Judge Rules Surveillance Has No Probative Value in Maintenance and Cure Claim
Posted by: James M. Beard
June 15, 2010
The United States District Court has ruled that a surveillance video taken of a Jones Act seaman had no probative value in the seaman's maintenance and cure claim. In Meir v. Wood Towing, 2010 WL 2195700, the employer disputed the seaman's right to maintenance and cure and refused to pay the seaman's back surgery bill and other related medical expenses of $83,000. The injured seaman's treating doctor recommended surgery for the crewman who alleged he had slipped and fell on a slippery substance on a barge. The injured seaman had an abnormal MRI and discogram at L5-S1. The employer requested a second opinion by an orthopedic physician who initially agreed with the treating doctor that an anterior surgical fusion was reasonable.
Trident Seafoods Contractual Venue Clause For Injury Suits Held To Be Unenforceable
Posted by: James M. Beard
May 25, 2010
The United States District Court for the Northern District of California has refused Seattle-based Trident Seafoods' motion to dismiss an injured Jones Act seaman's claim from its District Court in California. Trident sought to dismiss the case based upon improper venue. Trident's employment contract for its fishing crewmen and fish processors contains a forum selection clause requiring all injury claims lawsuits to be filed in Federal or State Court in Seattle, Washington.
Jones Act Employer Owes Crewman Duty to Inspect Third Party's Vessel To Insure Crewman Safe Place to Work
Posted by: James M. Beard
May 25, 2010
Maritime Law is well settled that a Jones Act employer has an absolute non-delegable duty to furnish the seaman in its employ with a safe place in which to work. The law is also well settled that this duty includes a duty to inspect third party property for hazards and to protect the employee from possible defects in a ship owned by another. In other words, a Jones Act employer has the duty to inspect the third-party ships to which it sends its employees to work on. If, by a reasonable inspection, the employer could have discovered the unsafe condition, then the employer will be charged with notice of that condition. The employer can protect itself from liability by simply refusing to allow its employee from working on a ship owned by another.
Injured Worker's Immigration Status Held Inadmissible By Washington Supreme Court
Posted by: James M. Beard
April 16, 2010
The Washington State Supreme Court has ruled yesterday that evidence of an injured worker's illegal immigration status is highly prejudicial and should be held to be inadmissible at trial. Alex Silas was injured when he fell from a ladder at a construction site. Silas was a Mexican citizen who came to the United States in 1989. Although he applied for citizenship, his application was never processed. His visa expired in 1994, but he continued to live and work in the Seattle area. He paid taxes on his earnings. Silas was married and had three children in the United States.
Court Denies Fishing Company's Request For Vocational Exam of Injured Worker
Posted by: James M. Beard
April 16, 2010
In a case currently pending in King County, Seattle, Elliottt v. Seafreeze Alaska, et al., a Superior Court a judge has denied Seafreeze Alaska's motion to have an injured fish processor examined by a vocational counselor.
Under Washington State Court Rules, a defendant in a Jones Act injury lawsuit may, upon good cause shown, select a doctor to examine an injured seaman. The true independence of these exams is highly questionable, as some medical doctors make a living testifying for insurance companies. Washington Court Rule 35 specifically states the exams are to be conducted by a physician or psychologist. Nevertheless, in many cases, fishing companies have sought to extend the rule and have the injured crewman interviewed and tested by a vocational rehabilitation counselor. Routinely, these defense-hired vocational experts offer opinions that seriously injured workers can find alternate employment in less demanding physical occupations and that therefore the worker is not entitled to future lost wages. Defense vocational examinations are sometimes utilized by Defendants to circumvent the Court Rules which prohibit contacts with an injured seaman without his attorney being present. The vocational interview can be abused and turned into a fishing expedition into areas not relevant to the injury claim and/or matters which are privileged. Rule 35 examinations should be strictly limited to examinations by medical doctors and psychologists. Rule 35 should not be used for purposes of examinations by a vocational counselor.
ICICLE SEAFOODS ORDERED TO PAY INJURED SEAMAN ATTORNEY FEES FOR MAINTENANCE AND CURE TRIAL
Posted by: James Beard
January 29, 2010
Icicle Seafoods has been ordered to pay an injured seaman $ 387,558 in an attorney fee award plus $40,500 in case expenses arising out of a November 16, 2009 jury trial in King County. Dana Clausen, a crewman working for Icicle Seafoods, was previously awarded 1.3 million dollars in punitive damages for Icicle's willful and wanton failure to pay maintenance and cure benefits.
Washington Allows Jury Trial Demand By Employers in State Court Jones Act Cases
Posted by: James M. Beard
January 07, 2010
In Jones Act injury cases, the Washington State Supreme Court has ruled that an employer has the right to demand a trial by jury. Previous to the decision in Endicott v. Icicle Seafoods, most Washington State Superior Court Judges ruled that only the injured seaman had the right to demand or not demand a jury trial in State Court.
King County Jury Awards $1.3 Million In Punitive Damages Against Icicle Seafoods
Posted by: James Beard
November 20, 2009
A King County Washington jury has awarded $1.5 million to a 55 year old Louisiana fisherman who suffered injuries while working aboard a fish processing vessel owned by Icicle Seafoods. The jury found Icicle Seafoods’ conduct in failing to pay the injured seaman, Dana Clausen, his full entitlement to maintenance and cure benefits to be willful and callous and assessed $1,300,000 of the award in punitive damages. Jim Jacobsen of Beard Stacey & Jacobsen, together with Larry Curtis, represented Clausen.
Fishing Company Sanctioned for Improper Ex-parte Contacts With Injured Seamans Treating Doctors
Posted by: James M. Beard
October 08, 2009
A Court Order has been issued for sanctions against United States Seafoods for having improper ex-parte communications with an injured seaman's treating doctor. An insurance adjuster for the Alaska fishing company contacted the injured seaman's treating doctor to seek an opinion relating to whether or not the seaman was at maximum medical cure. The seaman's attorney had previously revoked all authorizations given to the insurance adjuster to obtain medical information about the seaman. The Court had also previously ordered the company to pay back maintenance. The Court sanctioned United States Seafoods finding that the ex-parte contacts to be "highly improper" and clearly without "legal basis." An Order was also issued prohibiting United States Seafoods from engaging in future ex-parte contact with the injured seaman's treating health care providers, even if they have information relevant to issues relating to maintenance and cure. The King County Superior Court Case is Holloway v. Alaska Beauty LLC and United States Seafoods.
LAST REMAINING ALASKA RANGER CASES TO PROCEED IN STATE COURT
Posted by: James M. Beard
September 17, 2009
Following the sinking of the ALASKA RANGER, the vessel owners, Fishing Company of Alaska, filed a petition for limitation of liability in United States District Court for the Western District of Washington. By filing the limitation of liability action, the vessel owners were able to stay the pending State Court suits of the crewmen who survived the sinking. Twenty six crewman filed claims for physical and psychological injuries in the Federal limitation of liability action. All but two of those claims have been resolved with the assistance of a Federal Mediator. The claims of crewman Juan Barrios and fishing observer Gwen Rains remained pending in Federal Court until September 11, 2009 when, by stipulation of the parties, the stay of proceedings was lifted as to the Rains' and Barrios' actions. The amount of damages to be awarded in the Barrios case may now be decided by jury trial in Washington State Superior Court.
Beard Stacey & Jacobsen represented 13 of the surviving crewmen from the ALASKA RANGER case and also represented the family of deceased crewman Byron Carrillo. The amounts of those crewmen's settlements remain confidential.
Dismissal of Case For Forum Non Conveniens
Posted by: James M. Beard
August 30, 2009
When a maritime accident occurs in one location but the involved parties are from other jurisdictions, the Court sometimes must decide where is the most "convenient" jurisdiction for the lawsuit. One such recent example of a Court's determination of the most convenient jurisdiction arose following the death of a Bahamian national who was severely injured and ultimately died as the result of a collision with another vessel. The Bahamian national, Mr. Pinder, was in a skiff belonging to a Bahamian ship's skiff fleet. Mr. Pinder's skiff was allegedly struck by the M/V MALVI navigated by Mr. Moscetti in territorial waters of the Bahamas. Mr. Moscetti is a Florida resident and the M/V MALVI is registered in Florida and owned by a Florida corporation. Ms. Pinder filed suit in the Southern District of Florida for a wrongful death action under the Death on the High Seas Act ("DOSHA").
The defendants' filed a Motion To Dismiss For Forum Non Conveniens stating the Bahamian Courts have jurisdiction over this case. The basis for the defendants' argument was that the plaintiff resides in the Bahamas as did her late husband; the accident happened in Bahamian waters; a majority of witnesses to the case reside in the Bahamas; and the Bahamian authorities investigated the accident. District Court Judge Adalberto Jordan agreed with the defendants and dismissed the case without prejudice.
The Florida Court's analysis is as follows, "District Courts have the discretion to dismiss a case under the doctrine of forum non conveniens where the convenience of the parties and the interests of justice weigh in favor of trying the action in an alternative forum," provided the plaintiff can file her claim in the alternative forum without undue prejudice or inconvenience.
In determining whether the alternative forum was sufficient, the Florida Court stated that it needed to determine whether United States Law applied to the case. In the case at hand, the U.S. law did not mandate a U.S. Court. Ms. Pinder brought her claims under DOSHA which does not have a mandatory venue provision. Additionally, before DOSHA can be applied to a claim, negligence of the defendant(s) needs to be determined pursuant to the tort law of the jurisdiction with the most contact with the event or occurrence. In this case, as noted above, the Bahamas is the forum with the most contact and, therefore, Bahamian law would be the applicable tort law.
Having determined this issue, the Court then needed to look to three factors to determine the appropriate forum; 1) is there an adequate alternative forum; 2) do the private and public factors weigh in favor of the alternative forum; and 3) can the plaintiff file her claim in the alternative forum without undue prejudice and inconvenience.
The Florida Court states that an adequate forum is one that provides some sort of relief, even if the relief is not perfect. The Florida Court noted that Bahamian Law is derived from English Common law and, therefore, recognizes theories of negligence. Additionally, Bahamian Law has a remedy similar to Florida's wrongful death action; the Accidents Act and Survival of Action Act.
The Florida Court then turned to public and private factors. The Florida Court recognized that it had no jurisdiction over the potential Bahamian witnesses and, therefore, would not have the ability to intervene should an issue arise regarding makingwitnesses available in the Florida Court. Additionally, all documentary evidence necessary to prove or disprove plaintiffs' claims are located in the Bahamas, such as official documentation regarding the maritime conditions at the time of the collision. Furthermore, because under DOSHA the Court has to also consider the "degree of negligence of the decedent and reduce the recovery accordingly," any documents related to decedent's maritime record would be located in the Bahamas as well. Based on the above, the Florida Court believed that the private factors were clear that the Bahamas was the appropriate forum.
In terms of public factors, the decedent was a Bahamian national and was killed in Bahamian waters by a foreign national. The Bahamas has an interest in seeing that the necessary steps are taken to ensure that the appropriate damages are awarded to promote safety to its residents and tourists through its laws.
Finally, the Florida Court needed to ensure that plaintiff's claims were not prejudiced by a dismissal for forum non conveniens. The Florida Court set forth several conditions for the defendants to ensure plaintiff's claims were preserved such as the defendants must agreed to service of process and jurisdiction in the Bahamas; the defendants must waive any statute of limitations for up to one year from the date of the order to allow plaintiff to refile her claims; the defendants must make available to plaintiff all evidence and witnesses in their custody or control, that is relevant to the action in questions whether located in the U.S. or not.
The Florida Court dismissed Ms. Pinder's case without prejudice and further ordered that if the defendants failed to comply with any conditions set forth above or the Bahamian Court declines to accept jurisdiction, Ms. Pinder's case would be reinstated in the Florida Court effective the date of its original filing.
SUPREME COURT RULES PUNITIVE DAMAGES AVAILABLE IN MAINTENANCE AND CURE CASES
Posted by: James M. Beard
June 26, 2009
The Supreme Court of the United States has ruled today that punitive damages may be awarded to Jones Act Seamen when their employer willfully and wantonly withholds payment of maintenance and cure benefits. The decision affirms the availability of punitive damages under the General Maritime Law and rejected arguments that the Court's prior decision in Miles v. Apex had prohibited such damages.
SUPREME COURT REDUCES DAMAGES IN EXXON VALDEZ SPILL CASE; SUGGESTS 1:1 DAMAGES RATIO FOR MARITIME CASES
Posted by: Joseph S. Stacey
June 25, 2008
The Supreme Court ruled Wednesday to reduce punitive damages in the Exxon Valdez oil spill case from an original jury award of $5 billion to about $500 million.
DEFINITION OF "SEAMAN" AGAIN DEBATED IN POTENTIAL SUPREME COURT CASE
Posted by: Joseph S. Stacey
June 19, 2007
In a previous post, I wrote about Isenhour v. Harvey's Casino, which found riverboat casino employees to be Jones Act seamen. The Supreme Court is now considering whether to hear another case involving casino boat workers and maritime law, and this case is slightly different.
JONES ACT PROTECTION EXTENDED TO RIVERBOAT CASINO EMPLOYEES
Posted by: Joseph S. Stacey
June 13, 2007
On Tuesday, June 12, a court ruling in the case Isenhour v. Harvey's Casino found that riverboat casino employees are Jones Act seamen, even though their jobs of dealing cards and running slot machines aren't traditional maritime jobs.
COURT OF APPEALS REVISITS MARITIME PREEMPTION
Posted by: Joseph S. Stacey
June 12, 2007
The way maritime cases are handled in Washington State courts was revisited recently in the case Lam v. Global Medical Systems.
