Could claim be nullified by the absence of a life jacket?
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.
Fishing does not have to be a dangerous activity, but it often involves injuries and deaths, including drowning accidents, explosions, fires, and other vessel-related accidents. In 1998, the Commercial Fishing Industry Vessel Safety Act was passed to improve safety standards in the lucrative, but dangerous fishing industry. The U.S. Coast Guard enforces the regulations of the Act, which involves helping rescue crew members after a vessel is lost. These regulations require that vessels engaged in commercial fishing activities have safety equipment on board, including life rafts. Boats must be equipped with flares, survival kits, and personal flotation devices..jpg)
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