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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Frigid waters add to maritime risks for Alaskan crabbing fleet

Posted on October 30, 2009 by Maritime Lawyer

In Alaska, October means the start of the crabbing season. Consumers often take for granted the process gone through to place the delicacy on plates across the country, but the harsh conditions that affect the Bering Sea can present fishermen with an array of hazards not faced by those who work on boats in warmer waters. In an effort to reduce accidents, and possible subsequent legal claims, the Coast Guard has teamed up with personnel from the Alaska Department of Fish and Game to observe and inspect crabbing vessels and to offer additional safety training.

The Coast Guard has been deployed in the Aleutian Island chain off the southwest tip of the state and the Bering Sea in order to improve response time in the event of emergencies.

One aspect of the crab fishermen’s job that makes their profession particularly perilous is the location, as early-October temperatures through parts of the Aleutian Island chain have already dipped into the 40s (Fahrenheit), meaning seamen who fall overboard face the additional risk of hypothermia. Because of the frigid and rough seas, accidents are often more serious than those in warmer waters, increasing the risk of serious injury and death.

Under maritime law, specifically according to the Unseaworthyness Doctrine, the owner of a vessel owes it to the members of the boat’s crew to provide a seaworthy vessel. Failure to do so makes the owner liable for compensation to any seaman injured on the unseaworthy vessel. Potential damages could include pain and suffering, loss of wages (current and future), retraining costs and the cost of medical and nursing services for the injured seaman.

A vessel can be deemed unseaworthy for a number of reasons, including but not limited to:

  • Inadequate or improperly trained crew
  • Defective, insufficient or unsafe tools and/or equipment
  • Faulty design
  • Unsafe work procedures, practices or conditions
  • Improper training
  • Excessive work hours
  • Lack of qualified supervision

If a crewmember is injured, and a maritime attorney can prove the vessel on which the crewmember was injured was not seaworthy, then the owner of the vessel can be held liable for several forms of compensation.

Shipowners who operate crab boats off the shore of Alaska run a higher risk of having their vessels deemed unseaworthy, because the often-rough seas and the cold air and water conditions increase the chance that a maritime lawyer could prove the conditions to be excessively dangerous. If the owner of the vessel can’t prove that the necessary steps were taken to care of the ship’s crew, the chances that a court would rule in an injured seaman’s favor would increase. In addition to pain and suffering, and some form of compensation to cover lost wages (including lost future wages, if injuries require long-term absence from work), the shipowner also is obligated under admiralty law to provide maintenance and cure: free medical treatment until the injured seaman reaches “maximum medical cure” and basic room and board expenses until they either are able to return to work or the period of the voyage ends.

Not only do the rough water conditions make accidents a legitimate possibility, the cold temperatures above and below the surface also increase the likelihood of illness and cold-related conditions like hypothermia.

Also coming into play are maritime laws like the Death on the High Seas Act (DOHSA) and the Jones Act.

If an accident occurs more than three miles offshore (in international waters), the case could fall under DOHSA protection. DOSHA was passed in 1920 so that the surviving family members of seamen who died while working in international waters could receive compensation for the loss of the deceased’s future earnings.

However, it’s more likely that the case of an injury to a seaman working in the Alaskan crabbing fleet would fall under the Jones Act, which applies to accidents on either side of the three-mile boundary, as long as the vessel on which they were working was on navigable waters. To qualify for Jones Act coverage, an injured Jones Act seaman or his surviving family must prove the seaman was a U.S. citizen and a regular member of the vessel’s crew (a label given to those who work at least 30 percent of their available working time on a single vessel or fleet of vessels under common ownership). If crewmembers are aboard for extended periods of time for a long trip, they obviously fall under the required “regular crew member” label, as is required in all Jones Act claims.

This year’s crabbing fleet is expected to be larger than in years past. Prior to the start of crabbing season last week, the Coast Guard Marine Safety Detachment in Unalaska conducted exams aboard 41 of the 93 vessels. No overloading of pots was noted. A few deficiencies — including expired life rafts, hydrostatic releases and Electronic Position Indicating Radio Beacon batteries — were found during the Coast Guard safety checks, but were corrected prior to the vessels getting underway. Proof of a favorable Coast Guard inspection could be useful evidence in any claim filed against a shipowner.

In the case of the Alaskan crabbing fleet, more than 20 fishermen attended Coast Guard safety training at the community pool and local harbor in Unalaska, where topics included proper use of life rafts, survival unit and flare training. Twelve fishermen attended the Unalaska damage control training and several vessel captains requested that Coast Guard examiners conduct emergency drills aboard their vessels prior to the start of the crabbing season.

No amount of training and safety preparation, of course, guarantees the elimination of accidents, so in the event of an accident, seamen or their surviving family will need representation by an accomplished maritime lawyer who specializes in cases dealing with the Jones Act and maritime law.
 

 
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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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Rescued Fisherman Eligible for Maintenance and Cure Benefits

Posted on October 13, 2009 by Maritime Lawyer

The United States Coast Guard successfully rescued a fisherman reportedly suffering from a stroke this past Sunday.

At approximately 10 p.m., a commercial fishing vessel contacted the Coast Guard and requested a medevac for a crew member needing immediate medical assistance. The vessel was cruising roughly four nautical miles southwest of Point Hueneme, California at the time of the incident.

A Coast Guard MH-65C Dolphin helicopter from Coast Guard Air Station Los Angeles patrolling the area was quickly dispatched to the scene and successfully retrieved the 62-year-old seaman. The victim was transferred in stable condition to Torrance Memorial Medical Center.

 

Maintenance and Cure

Admiralty law, also known as maritime law, gives injured seamen certain rights beyond the usual worker’s compensation benefits afforded to landlocked workers.

For example, the admiralty law principal of maintenance and cure obligates vessel owners to provide for crew members that are injured or become ill while in service to their vessels. So even if the fisherman suffered a stroke through no fault of the vessel’s owner, the owner is still required to provide maintenance and cure benefits.

Cure


The concept of ‘cure’ is the seaman’s right to free medical treatment until they are either fit for duty or reach ‘maximum medical cure’. Maximum medical cure is the state in which a seaman is returned as close as medically possible to the condition they were in prior to the injury. In this case, the fisherman might be entitled anti-seizure or other medical treatments even if they are long-term or permanent.

Maintenance

The concept of maintenance obligates shipowners to cover the basic living expenses of crew members while they are convalescing. This benefit was designed to repay seamen for their basic room and board, which under normal circumstances would be provided aboard the vessel on which they served. Maintenance is only provided until a seaman is able to return to duty or when they reach maximum medical cure – even if he remains disabled or is otherwise unable to return to work as a seaman.

Jones Act

United States citizens working as seamen aboard vessels operating in navigable waters may be eligible for special Jones Act rights provided by the Merchant Marine Act of 1920 (also known as the Jones Act). The Jones Act offers numerous benefits beyond the basic maintenance and cure benefits offered under admiralty law.

 

 
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