Seattle Maritime Injury Lawyer Blog

Search For Missing F/V Exito Crew Called Off

December 14, 2016 | Kraft Davies Olsson PLLC

On Friday, December 6, 2016, at 9:38 p.m., the crew of the F/V Exito contacted the U.S. Coast Guard reporting that they were taking on water 14 miles northeast of Dutch Harbor. Five crew members were aboard when the vessel sank and a nearby vessel, the Afognak Strait, was able to rescue three crew members from the water. The U.S. Coast Guard responded with the Coast Guard cutter Alex Haley and a Jayhawk helicopter from Air Station Kodiak. Unfortunately, the other two crew members were not found and remain missing.

After searching for the crew for three days, the U.S. Coast Guard called off the search on December 9. Our thoughts and prayers go out to the families of the missing crewmembers of the F/V Exito. The investigation into the details of the sinking of the F/V Exito remain under investigation by the U.S. Coast Guard.

The crew of the F/V Exito is covered under the Jones Act. If you have questions about your right to compensation under the Jones Act, contact our experienced maritime injury and death attorneys for a free consultation.

Fisherman Injured on F/V BLUE NORTH in Bering Sea

November 18, 2016 | Kraft Davies Olsson PLLC

On November 9, the U.S. Coast Guard received a request for a medevac from F/V BLUE NORTH, a Seattle-based fishing company, when a 41-year-old crew member sustained a neck injury while working on the vessel. Neck and spinal injuries can be serious and can lead to permanent disabilities. Due to the nature of the injury, a U.S. Coast Guard flight surgeon recommended an emergency medevac from the vessel to a trauma center. At the time of the incident, the vessel was approximately 285 miles northwest of St. Paul in the Bering Sea and steamed toward shore to meet the helicopter. Taking off from Air Station Kodiak, a Jayhawk helicopter flew to Cold Bay to hoist the injured fisherman off the fishing vessel and the crew member was transported to the hospital for emergency evaluation and treatment.

At this point, there are no details about the cause of the crew member’s injury. Fishermen injured on fishing vessels are entitled to coverage under the federal Jones Act, which covers seamen, fishermen, and other maritime workers injured on boats and ships. Under the Jones Act, an injured fisherman may be entitled to lost wages and damages for pain, disability, and loss of enjoyment of life.

If you are injured on a fishing vessel, it is important that you notify your employer of the injury and fill out an incident report. In the report, you should describe exactly how you were injured, what unsafe condition contributed to your injury, and provide the names of all witnesses that were present at the scene of your injury. It is important that you obtain prompt medical attention following an injury. You have the right to select your own medical providers and do not have to go to doctors selected by the fishing company. While you receive medical treatment for your injuries, the company has an obligation to pay you a daily stipend called “maintenance” to cover your room-and-board expenses on land. The company is also obligated to pay for all medical expenses related to your injury or illness that are designed to improve your condition.

Can I Get My Maintenance Rate Increased?

November 1, 2016 | Kraft Davies Olsson PLLC

If you have been injured while working on a vessel, you may wonder if you can get your maintenance rate increased from what is set forth in your employment contact. The short answer is “yes” in many circumstances. For example, what if your employer’s contract set forth a maintenance rate of only $30 per day but your actual room-and-board expenses were $70 per day. A seaman or fisherman is entitled to actual reasonable room-and-board expenses while recovering from an injury or illness on land in most situations.

“The rule of maintenance and cure is simple and broad: a seaman is entitled to maintenance and cure for any injury or illness that occurs or becomes aggravated while he is serving the ship.” Messier v. Bouchard Transp., 688 F.3d 78, 83-84 (2d Cir. 2012) (emphasis in original). In Dean v. Fishing Co. of Alaska, Inc., 177 Wn.2d 399 (2013), the Washington State Supreme Court summarized the law of maintenance and cure:

Under general maritime law, a shipowner has a duty to provide maintenance and cure to a seaman who “becomes ill or is injured while in the service of the ship.” Vella v. Ford Motor Co., 421 U.S. 1, 3, 95 S. Ct. 1381, 43 L. Ed. 2d 682 (1975); Clausen v. Icicle Seafoods, Inc., 174 Wn.2d 70, 76, 272 P.3d 827 (2012). “Maintenance” is a per diem living allowance for food and lodging comparable to what the seaman is entitled to while at sea; “cure” is payment of medical expenses incurred in treating the seaman’s injury or illness. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 S. Ct. 651, 82 L. Ed. 993 (1938); Clausen, 174 Wn.2d at 76. The shipowner’s duty to pay maintenance and cure “continues until the seaman . . . reaches the point of maximum medical recovery.” 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-28, at 393 (4th ed. 2004) (citing Farrell v. United States, 336 U.S. 511, 522-23, 69 S. Ct. 707, 93 L. Ed. 850 (1949)). “‘Maximum medical cure’ is reached when the seaman recovers from the injury, the condition permanently stabilizes or cannot be improved further.” McMillan v. Tug Jane A. Bouchard, 885 F. Supp. 452, 459 (E.D.N.Y. 1995). . .

Alaska Salmon Season Yields Less Salmon

August 11, 2016 | Kraft Davies Olsson PLLC

The 2016 Alaska salmon harvest is seeing a sharp decline from 2015, but one species is helping to save the summer fishing season. According to the Alaska Department of Fish and Game, the projected total catch for salmon during the summer of 2016 is 161 million, down 40 percent from 2015’s harvest of over 268 million salmon. To date in 2016 there has been about 88 million salmon caught. One bright spot for Alaska fishing during the 2016 salmon fishing season has been the sockeye salmon, which is projected to have a total harvest that will rank in Alaska’s all-time top ten for sockeye. While other salmon species have had low catch numbers, thus far the sockeye salmon harvest has surpassed 51 million. Bristol Bay has received a sockeye salmon catch so far of 38 million, greatly exceeding expectations, and will likely result in the largest sockeye harvest there in over 20 years.

The large decline in 2016 for Alaska total salmon harvest can be contributed to the significant decline in pink salmon harvest statewide; an estimated 90 million will be caught this year, while 190 million were caught in 2015. Some fishing areas, such as the Kodiak, are seeing the slowest pink salmon harvest since the 1970’s. Other notable Alaska salmon harvests thus far include the following: red salmon, nearly 48 million – down 7 million from last year; silver salmon, 4.4 million – up by 500,000; and chum salmon, 19 million – up by 500,000.

While Alaska salmon fishing is one of Alaska’s most important industries, with an annual average harvest exceeding 150 million fish sold by commercial fishermen, it can also be a very dangerous occupation. The National Institute for Occupational Safety and Health found that during the decade of 2000-2009, salmon fishery experienced the most occupational deaths within commercial fishing in the United States, with 39 fatalities.

F/T ALASKA JURIS CREW FORCED TO ABANDONED SHIP

July 27, 2016 | Kraft Davies Olsson PLLC

According to news reports, 46 crew members were forced to abandoned ship when the Fishing Company of Alaska factory trawler F/T ALASKA JURIS began taking on water and sinking off the coast of Alaska’s Aleutian Islands yesterday. The U.S. Coast Guard was notified at 11:30 a.m. that the vessel was in distress and taking on water. The crew got into survival suits and deployed in three survival life rafts. The U.S. Coast Guard reports no injuries and the entire crew was reportedly transferred from life rafts in the water to merchant ships in the area.

The 220-foot F/T ALASKA JURIS began taking on water approximately 690 miles west of Dutch Harbor. After the crew abandoned ship, two of the lift rafts were secured to the sinking vessel in an attempt to keep the rafts from drifting away. A third raft with another 18 members of the crew was unable to tie up to the vessel and was adrift. Crew members in all three rafts were eventually picked up by the good Samaritan merchant vessels SPAR CANIS and VIENNA EXPRESS. The crew was loaded onto the vessels by 8:20 p.m. and was in route to Adak, Alaska according to the U.S. Coast Guard.

The cause of the vessel taking on water is under investigation by the Coast Guard, but preliminary information points to potential mechanical problems in the ship’s engine room that caused the vessel to lose power. Weather at the scene was reportedly calm with limited visibility due to heavy fog.

Recreational Boating Fatalities on the Decline

July 8, 2016 | Kraft Davies Olsson PLLC

The 2015 annual recreational boating statistics report was released by the United States Coast Guard, which found the third lowest number of fatality deaths in a year at 626 deaths. While the total number of fatalities represented a slight increase in the rate of deaths per 100,000 registered recreational vessels, it represented a continued trend in the decreasing number of overall boating related deaths. In addition to 626 deaths, in 2015, there were 4,158 vessel related accidents leading to 2,613 injuries. To put these numbers in perspective, in 2015, there were 11,867,049 registered recreational vessels, an increase of 63,047 from last year.

In 2015, the top 5 vessels with deaths or injuries consisted of 1) open motorboat; 2) personal watercraft; 3) cabin motorboat; 4) canoe/kayak; and 5) pontoon. In addition, the top 5 primary accident types last year were 1) collision with recreational vessel; 2) collision with fixed object; 3) flooding/swamping; 4) grounding; and 5) skier mishap. In 2015, the top 10 known primary contributing factors of accidents were:

1) Operator inattention (551 accidents, 58 deaths, 353 injuries)

Federal Court Orders American Seafoods Company to Increase Maintenance Pay for Injured Workers.

May 24, 2016 | Kraft Davies Olsson PLLC

On May 24, 2016, a federal court in Seattle rejected American Seafoods Company’s attempts to limit the maintenance rate to the $30 per day set forth in the employment contract. American Seafoods took the position that it would not pay our client more than the $30 per day set forth in the contract even though our client’s actual room-and-board expenses exceeded the contracted rate. As a result of the decision, American Seafoods can no longer limit its workers to the $30 a day set forth in its contracts and each worker is entitled to present evidence of their actual room-and-board expenses to establish their maintenance rate. This is a significant victory for American Seafoods seafood processors and other shipboard workers.

In finding in favor of our client and rejecting the rate set forth in the company’s contract in Sabow v. American Seafoods Company, USDC W.D. Wa. Case No. C16-0111-JCC, the Honorable John C. Coughenour adopted a burden-shifting test articulated by the Second Circuit in Incandela v. Am. Dredging Co., 659 F.2d 11, 14 (2d Cir. 1981). Under the Incandela burden-shifting test, a “seaman makes out a prima facie case on the maintenance rate question when he proves the actual living expenditures which he found it necessary to incur during his convalescence.” Incadela, 659 F.2d at 14. Once the seaman makes the proper showing, the burden shifts to the vessel owner to produce rebuttal evidence. Incandela, 659 F.2d at 14. In order to rebut the prima facie evidence presented by a seaman, the company must make a showing that the seaman’s expenses are unreasonable: “. . . Sabow need not find the cheapest accommodations – his accommodations need simply be reasonable.” Because American Seafoods failed to show that Sabow’s expenses were unreasonable, he was entitled to all of his living expenses under the doctrine of maintenance.

American Seafoods Company had further argued that the seaman’s living expenses should be prorated to take into account the fact that other family members lived in the apartment. Rejecting American Seafoods argument once again, the Court held that the amount of the seaman’s living expenses should not be prorated or otherwise reduced if he lives with other family members. In reaching this conclusion the Court reasoned that a seaman who pays for the rent or mortgage of a home he shares with his family actually spends out-of-pocket the entire amount. He cannot pay any less without losing his home. If a seaman would incur the lodging expenses of the home even if living alone, then the entire lodging expense represents the seaman’s actual expenses. Sabow v. American Seafoods Company, USDC W.D. Wa. Case No. C16-0111-JCC, Docket #30 at 12, citing Hall v. Noble Drilling, 242 F.3d 582, 589 (5^th Cir. 2001).

Tug Specialist Sinking on Hudson River

March 28, 2016 | Kraft Davies Olsson PLLC

On March 12, 2016, a tugboat crashed into a barge on the Hudson River near New York City, leaving two dead and one missing. The tugboat, name Specialist, was 84 feet long and sank near the new Tappan Zee Bridge. The tugboat sank within minutes after it hit a stationary construction barge near the bridge. The Specialist was one of three tugboats transporting a barge from Albany, New York to Jersey City, New Jersey. The crash resulted in 5,000 gallons of fuel aboard the tugboat being spilled in the Hudson River. The three aboard the tugboat included the deceased, Specialist’s captain Paul Amon, 62 years old, and pilot Timothy Conklin, 29, who drowned in 40 degree temperature water. The third crew member, still missing, was identified by authorities as Harry Hernandez, 56. At the time of the incident, 21 workers were on the bridge construction barge that was hit, but none sustained injuries.

Following the death of a tug crew member, the Jones Act provides a remedy for those who are fatally injured during the course of their employment. 46 U.S.C. § 30104. The Jones Act is the exclusive remedy for negligence of the seaman’s employer, or of the master and crew, with respect to death of a seaman, as it provides both a “wrongful death” remedy and a limited “survival” remedy. However, the Jones Act does not supersede remedies for torts other than negligence of his employer. Causes of action for unseaworthiness, strict liability, or negligence of third parties can be brought under the Death on the High Seas Act (DOHSA), if the wrongful acts occurred on the high seas, or the general maritime law’s wrongful death or survival remedies. A Jones Act wrongful death action must be brought by the personal representative for the benefit of the seaman’s (1) surviving spouse and children, (2) parents, and (3) dependent next of kin. 45 U.S.C. § 59. In addition, the action can be brought only against the seaman’s employer. Once a Jones Act wrongful death action is brought by a personal representative, they may try to recover for pecuniary losses, for pain and suffering, or for both. Wrongful death pecuniary loss benefits are to be awarded based on the provable losses of each statutory beneficiary. Gulf, C. & S. F. R. R. Co. v McGinnis, 228 U.S. 173 (1913). Pecuniary losses are limited to those losses that may “be measured by a money standard.” American Railroad Co. of Porto Rico v. Didricksen, 227 U.S. 145, 150 (1913). Recovery normally is allowed to children of the decedent for loss of support to majority. Parga v. Pacific E. R. Co., 103 Cal. App. 2d 840, 230 P.2d 364 (1951).

In addition to pecuniary loss, the Jones Act does allow an additional recovery for the decedent’s conscious pain and suffering, predeath medical expenses, and predeath loss of income. Under the Federal Employers Liability Act (FELA), which is incorporated into the Jones Act, the decedent’s estate is allowed to recover damages on the cause of action the decedent himself would have had for his conscious pain and suffering but for his demise. See, Snyder v. Whittaker Corp., 839 F.2d 1085, 1988 AMC 2535 (5^th Cir. 1988); Greene v. Vantage S.S. Corp., 466 F.2d 159, 1972 AMC 2187 (4^th Cir. 1972).

When Should a Seaman Receive Maintenance and Cure?

March 14, 2016 | Kraft Davies Olsson PLLC

Maintenance and cure has been recognized in the United States courts dating back to 1823 when it was determined by the court that seamen by nature of their profession are particularly prone to injury and illness and are often ill-equipped to handle the expense of such. If while in service of a vessel, traveling to the vessel (in some instances), or on shore leave, a seaman is injured, falls ill or aggravates a pre-existing injury or illness, it is the duty of the ship-owner to provide the seaman with ‘maintenance’, which is a daily stipend intended to cover their room and board expenses while recuperating. The seaman’s employer has the duty to pay maintenance promptly until maximum medical improvement has been reached. Maintenance is most commonly paid twice per month.

Medical Cure

All reasonable and necessary medical treatment related to an injury or illness which occurred while in service of a vessel is considered “cure”. Seamen have the right to choose their own medical providers and are under no obligation to receive treatment from doctors selected by their employer. Generally a seaman’s health care providers bill the vessel owner directly for any treatments falling under cure. Employers must promptly reimburse the seaman for any out of pocket expenses relating to their treatment, including the cost of travel to medical appointments.

Women’s Participation in Alaskan Commercial Fishing is on the Rise

March 10, 2016 | Kraft Davies Olsson PLLC

The Alaskan fishing industry is made up of more than 78,000 jobs and is responsible for more than $5.8 billion in revenue each year. However, even after decades of progress for women in other fields, the Alaskan fishing industry remains mostly male dominated. According to the Alaska Department of Labor and Workforce Development, women make up only 14 percent of commercial fisherman and roughly 33 percent of processing workers. Women continue to face substantial challenges working in the male dominated fishing industry. For example, many captains still retain old prejudices that women cannot perform the work as well as men.

While women make up only a small percentage of the Alaskan fishing industry, there are many examples of their significant impact, including those who have built their own businesses, impacted business development in the industry, and passed down fishing legacies to their children. Many women have been born into fishing families, where they have continued, and expanded upon, their generational fishing legacies. At Kraft Davies Olsson we are proud to represent women who fish in Alaska and recognize the significant impact they have on the Alaskan fishing industry.