Coast Guard rescues commercial fishermen after collision with their own oyster dredge

Posted on January 15, 2010 by Maritime Lawyer

Yesterday afternoon, the U.S. Coast Guard dispatched a utility boat from Station Crisfield in Maryland to rescue the Helen Virginia, a 45-foot commercial fishing vessel that was sinking. Fortunately for the crew of the fishing vessel, there was a good Samaritan nearby who was able to radio in the mayday, and the Coast Guard boat was already underway, so they arrived at the accident scene within two minutes of the call.

According to the Coast Guard report, the Helen Virginia was taking on water after it hit a oyster dredge they were using.

Considering what could have happened, thanks to the Coast Guard this incident had a happy ending. The crew was safely transferred from the fishing vessel, and the rescue crew was able to pump out more than 3,000 gallons of water to refloat the vessel and effect a temporary repair, so that Helen Virginia could be towed safely back to Scott’s Cove Marina in Chance, Md.

Negligence, Unseaworthiness and Crew Safety

Examining this incident from a maritime lawyer’s perspective raises several red flags concerning crew safety.

First, why did the vessel come into contact with the oyster dredge? If a maritime injury had occurred and a crewmember decided to file a Jones Act claim, the likely culprits would either be negligence on the part of the vessel’s skipper for hitting the dredge or negligence on the part of the dredge operator for allowing it to hit the vessel. If there was a failure in the dredge equipment that caused it to contact the Helen Virginia, that would be probably be considered faulty design or unsafe equipment – both of which are grounds for a claim under the Unseaworthiness Doctrine.

The second question would be how did contact with the dredge result in holing the fishing vessel? If contact with a dredge is even a possibility, shouldn’t the vessel be built strong enough to withstand that impact? Again, the vessel would likely be deemed unseaworthy in a court of law if a dredge was used and the vessel was not built well enough to withstand an impact from the dredge.

Lastly, the fact that Helen Virginia had to rely on a good Samaritan to call in the rescue, calls into question the fishing vessel’s communication equipment. If the vessel was operating beyond the range of its radio, the vessel might be considered unseaworthy because it was operating beyond its capabilities. If there was no redundant communications equipment, like a handheld radio in case of power loss or destruction of the primary radio, the vessel might also be deemed unseaworthy on those grounds.

Maritime laws like the Jones Act and the Unseaworthiness Doctrine can be complex. If a maritime injury occurs, it’s crucial for the victim or their family to contact a maritime or Jones Act lawyer as soon as possible, because using a lawyer unfamiliar with maritime law can result in reduced or lost benefits. To discuss a case with an experienced maritime lawyer, please fill out the FREE Case Review form on this page or call the maritime law office of Arnold & Itkin toll free at 866-222-2606

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Could claim be nullified by the absence of a life jacket?

Posted on October 29, 2009 by Maritime Lawyer

A 60-year-old man who fell from a fishing vessel in the Gulf of Mexico about 20 miles off the coast of South Padre Island, Texas, remains missing. The Coast Guard, which received a mayday call from a crewmember on the Si Se Puede minutes before midnight last Saturday night, is searching for the missing man, who was the master of the boat.

An HH-65C helicopter rescue crew and an HU-25 Falcon jet from Air Station Corpus Christi and a 33-foot rescue boat from Station South Padre Island were dispatched to the location from which the call was placed. An 87-foot patrol boat, the Coast Guard Cutter Manatee, also joined the search.

If the accident results in a fatality, legal claims for compensation could be complicated by the fact that the missing seaman was reported to be without a life jacket. A maritime lawyer defending the shipowner could try to prove that the vessel had sufficient life jackets on board, thereby reducing or even nullifying a negligence claim.


Also worth considering:

  • Does the boat have a policy about crew members wearing life jackets? If so, why wasn’t the missing man wearing one? If such a policy was in place and he simply chose not to, could that limit, or perhaps eliminate, the shipowner’s liability. However, ships are required to have life jackets for each person on board, and if a maritime attorney can prove that not enough life jackets were provided, the liability in the case likely would be judged to have fallen back on the vessel’s owner.
  • If life jackets were available and not worn, could the water conditions dictate the level of liability for the owner? A maritime attorney might argue that mild water conditions reduced the need for the missing man to wear his life jacket, but if the vessel has a known or posted policy, that argument likely would carry less weight.
  • Was Si Se Puede seaworthy for the conditions in which it was operating? If the vessel were judged unseaworthy, the shipowner could be deemed negligent, and as such, would likely be liable to compensate the missing man’s surviving family.
  • Did the vessel have adequate gear for handling a man overboard situation, such as a throwable PFD, an emergency beacon (EPIRB), and a MOB recovery system (e.g. Lifesling)? Was the crew adequately trained and prepared for a MOB emergency? Was a crew member designated as a watchkeeper? All of these could have a bearing in determining whether any negligence was involved in this accident or not.

    Since the missing seaman was the master of Si Se Puede, any claims seeking compensation likely would fall under the Jones Act. In order to seek Jones Act coverage, a seaman or his surviving family must prove that the seaman was a “regular” member of a crew in service to a vessel on navigable waters. The current court ruling defines “regular” crew members as employees who spend 30 percent (or more) of their available working time on a single vessel or fleet of vessels under common ownership. Since the accident occurred approximately 20 miles off the coast, the Death on the High Seas Act (DOHSA) would also apply. However, an experienced maritime lawyer would likely prosecute a Jones Act claim due to the higher awards provided to Jones Act seamen or their surviving families under that statute.
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MOB tragedy underscores complexity of maritime law

Posted on October 20, 2009 by Maritime Lawyer

An incident occurred last Tuesday off the coast of Massachusetts that highlights the dangers of working in the maritime industry, and also reveals the complex legal issues that come into play when an accident occurs on the water.

Jaime Ortiz, 43, fell off a 39-foot lobster boat based in Gloucester, Mass., prompting an immediate search that included boats owned by local harbormasters, police and numerous local fishermen. Ortiz has not yet been found, and no official statement has been made about his chances of survival. Local officials said the search would continue.

One of the central issues surrounding the incident is the fact that Ortiz reportedly fell overboard “about three miles” off the coast. The three-mile distance from the U.S. shore is critical to the case, because it will help determine which law(s) apply if, in fact, Ortiz is lost at sea and his surviving family decides to file a claim seeking damages and/or future earnings.

 

 

Death on the High Seas Act vs. the Jones Act

If Ortiz is lost at sea and the incident occurred more than three miles from shore, his family may seek remedy under the Death on the High Seas Act (DOHSA). DOHSA was passed in 1920 to make it easier for surviving family members of seamen who died while working in international waters to receive compensation for the loss of future earnings by the deceased. If the accident occurred inside the three-mile boundary, Ortiz’s family may ask a Jones Act lawyer to seek remedy under the Jones Act. The Jones Act provides compensation to seamen in the case of an injury or the families of seamen who lose their lives while in service to a vessel, regardless of how far they were offshore when an accident occurs.


Qualifying for Jones Act protection

There are certain qualifiers that affect the Ortiz case, and others like it, in addition to merely the distance between the shoreline and the location of any such incident. DOHSA applies to anyone (e.g. boat owners and operators, crew, passengers, temporary employees, etc.) lost at sea more than three miles offshore. To qualify as a Jones Act seaman, the injured party only has to be a U.S. citizen and a regular crew member of a Jones Act vessel. In order to seek Jones Act coverage, a seaman or his surviving family must prove that the seaman was a ‘regular’ member of a crew in service to a vessel in navigable waters. The current court ruling defines ‘regular’ crew members as employees who spend 30 percent (or more) of their available working time on a single vessel or fleet of vessels under common ownership.

If Ortiz was a regular member of the crew, his family and/or legal representation could demonstrate that to the court through payroll statements, employment records, tax forms, etc. If Ortiz’s body is recovered or if he is presumed dead, and he is proven to have been a regular member of the crew and that he died as a result of negligence by the boat’s owner or crew, his family may be able to expect compensation through the Jones Act.

However, if Ortiz is not a U.S. citizen, or can’t prove that he is a regular member of the crew, or if he is a temporary employee, his case would fail to qualify under the Jones Act. The point is significant because Jones Act claims sometimes offer significant awards to the families of victims, who can sue for punitive damages, pain and suffering, future earnings of the deceased, etc. If Ortiz fails to meet the requirements of a Jones Act seaman and if the incident occurred inside the three-mile barrier from the shore, the victim’s family could come up empty in its attempts to seek compensation under maritime law. But if he meets all of the criteria and the accident is shown to have occurred more than three miles from shore, his surviving family members can file claims under both the Jones Act and DOHSA.


Proof of negligence

To successfully prosecute either a DOHSA or Jones Act case, the victim or his surviving family must prove negligence, either on the part of the boat’s owner or any other member of the crew. If negligence can be proven, Ortiz’s family could qualify for protection under the Jones Act and DOHSA if the incident occurred more than three miles offshore. Negligence could be found in a number of areas, including inadequate training of crew, failure to provide proper safety equipment, allowing a crew member to perform duties that exceed previous training, etc.

Also factoring into the equation is the fact that since both laws fall under maritime law, a victim’s family can file claims immediately, rather than having to wait a up to seven years for a civil court to declare the victim legally dead (also known as “death in absentia”).

A proven maritime lawyer will know the specifics of DOHSA, the Jones Act and their application to the Ortiz case, and has the knowledge to discern whether negligence was involved. An accomplished maritime attorney often will suggest filing immediately in order to allow as much time as possible for the case to be brought to trial before any relevant statute of limitations expires.

 

 
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Idaho Man Injured in Accident on Commercial Fishing Vessel

Posted on August 25, 2009 by Maritime Lawyer

An Idaho man had to be airlifted to a hospital after he sustained serious injuries in an explosion on a commercial fishing vessel.

The crew member, Joshua Gifford, was working in the cabin of a 24-foot fishing vessel on the Columbia River when the explosion occurred. Gifford sustained serious injuries, and had to be airlifted to a hospital.

Explosions on a fishing vessel may be the result of a gas tank leak. Activities that involve the use of electrical tools, like grinders, may cause sparks that can trigger an explosion. An explosion on a  vessel can quickly lead to a fire, compounding the situation further. Fires on a vessel are harder to put out, because the vessel cannot take on a lot of water without facing the risk of sinking.

Risks Aboard Commercial Fishing Vessels

Crew members on commercial fishing vessels are at risk everyday. There may be complex processing equipment on a fishing vessel, and the decks may be covered with grease and fish gurry. Commercial fishing crew members may be at risk from the elements of the weather.  In fact, until recently the job of the commercial fishing crew member was considered to be the most dangerous occupation in the United States. Commerical Fishing VesselDuring the 80’s and 90’s, fishing communities in small towns and villages along the coast lived in the constant fear of losing their loved ones to accidents on board these vessels.

For many years the commercial fishing industry was an unregulated one. The Fishing Vessel Safety Act set down regulations for safety standards, training of crew members, accident reporting procedures, and vessel stability. Strong regulations and the threat of legal action in case of violations have meant that there are fewer accidents involving these vessels than there used to be.

Commercial fishing crew members may also qualify under the Jones Act, although this can depend on whether they qualify as a Jones Act seaman. A seaman must have been assigned to a vessel or fleet of vessels on navigable waters, must contribute to the mission of the vessel, and must have a substantial connection with the vessel, both in terms of nature of work, as well as duration.

The maritime lawyers at Arnold & Itkin LLP represent workers injured on commercial fishing vessels, cargo ships, tankers, offshore rigs, cruise ships, barges and towboats.

 

 

 
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Fisherman Evacuated from Commercial Vessel after Suffering Heart Attack

Posted on August 20, 2009 by Maritime Lawyer

A crew member on a commercial fishing vessel had to be medically evacuated by the Coast Guard after he suffered a heart attack on board the vessel.

The crew member fell overboard from the fishing vessel Gaston, while he was engaged in pulling up a dredge. He was immediately rescued, and crew members brought him back on board the vessel. However, he began to experience chest pains and other symptoms of a heart attack. The crew members informed the Coast Guard, and the man was transferred to a rescue boat. He was taken to the Air Station in Cape Cod from where he was airlifted to the hospital. The crewman is believed to be in a stable condition.

Jones Act Seaman

Fishermen on commercial fishing vessels, depending on the nature of their service to the vessel and the amount of time they spend on it, may be eligible for coverage under the Jones Act. Falling ill on a vessel in the vast ocean is a hazard that a merchant seaman constantly faces. Jones Act VesselOut on a tanker, commercial fishing vessel or any other kind of Jones Act vessel, illnesses can strike suddenly and without warning. Seaman may suffer heart attacks, strokes, appendicitis, or other emergency conditions that require urgent medical care. The first few minutes after the symptoms appear, can be crucial. The wrong kind of medical attention or delayed medical care during this time can prove fatal.  

It's an employer's duty to ensure that a sick crew member gets the medical attention he needs. An employer must make arrangements for the seaman to receive specialized care offshore, if necessary. This may involve calling for Coast Guard and rescue help to have the worker airlifted.

Unfortunately, a single crew member who is unable to work due to illness can mean delays and financial losses for an employer. Such employers may try to delay calling for emergency medical help to have a worker moved onshore where he can receive specialized care. There may also be negligence in the kind of medical attention that a Jones Act seaman receives while he is on the vessel. 

Injuries that are aggravated by the negligence of an employer may be mentioned in a claim under the Jones Act. Workers whose symptoms worsen or their condition deteriorate because of delayed medical attention on a vessel, must consult with a maritime lawyer to understand their rights.

 

 
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