Boat on the sea
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The Federal Appellate Court for the Fifth Circuit has entered an opinion, McBride et al v. Estis Well Services, approving punitive damages for seaman in cases involving claims of unseaworthiness. The decision is one of the first Circuit Court decisions to address punitive damages availability in a Jones Act or unseaworthiness action since the Supreme Court of the United States’ land mark decision in Atlantic Soundings v. Townsend. The Atlantic Soundingsdecision declared punitive damages were available to seamen when their employer willfully and callously withheld maintenance and cure benefits. The McBride decision now confirms that punitive damages are also available under the general maritime law doctrine of seaworthiness.

The McBride case involved a barge with a truck-mounted drilling rig on a Louisiana bayou. As crewmen were attempting to straighten the monkey board – the catwalk that extends from the derrick – which had twisted the previous night, the derrick pipe shifted, causing the rig and truck to topple over. One crewman died in the accident and three others were injured.
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American Seafoods Group, one of biggest commercial fishing companies involved in the Alaska pollock fishery, has sold their east coast seafood processing business, American Pride Seafoods. The sale to High Liner Foods was announced October 1, 2013. High Liner Foods reportedly paid $34.5 million for this subsidiary of American Seafoods. The American Seafoods sale of American Pride Seafoods marks a departure from the company’s previous sea-to-plate market integration.

American Pride Seafoods is a value-added frozen seafood and scallop processing business with revenues of $190 million reported in 2012. Typical products include breaded seafood products such as fish and chips, frozen seafood, and seafood packaged for use by restaurants and retail food providers. High Liner Foods indicated that they intend to continue to operate American Pride Seafoods at the New Bedford location without any substantial changes at this time.
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An injured crewman suffering from internal injuries has been airlifted from the 285-foot fishing vessel AMERICAN TRIUMPH. The vessel, part of the American Seafoods fleet, was fishing 30 miles west of Coos Bay off of the Oregon Coast Sunday. The unidentified crewman was listed as being 37 years old. The call for help came at 3:30 P.M. The crewman was evacuated by a Coast Guard motor life boat crew and transported to Bay City where he was ambulanced to the bay area hospital. The crewman was reportedly treated and released from the hospital for further follow up care as may be needed.

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On September 6, the 44-foot fishing vessel, ADRIANNA, ran aground through the surf near Grays Harbor Washington. The incident was reportedly caused when the crewman on wheel watch feel asleep. The Coast Guard is citing fatigue as the cause of the accident.

The incident occurred at around 3:00 a.m. on Friday. Three crewmen were aboard the vessel at the time of the accident. There are no reported injuries at this time. The crew plans to attempt to refloat the steel-hulled vessel at the next high tide. No pollution has been noted at this time, however the vessel reportedly was carrying 1,200 gallons of diesel fuel.

The Coast Guard responded to the incident with helicopters and surfboats delivering pumps to the vessel. “Fatigue continues to be a major problem in the commercial fishing fleet. We’ve had numerous cases of people running aground due to fatigue over the last year,” said Captain Bruce Jones, commander, Coast Guard Sector Columbia River. “In the Pacific Northwest, there’s little margin for error. It’s absolutely critical that mariners always remain diligent and place sufficient emphasis on safety in order to protect life and our sensitive environment.”

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At approximately 10:00 p.m. on Friday, Tidewater Barge Lines reported to the Coast Guard than an unmanned 285-foot grain barge was missing from their Hayden Island facility. Crewmembers of the tug LORI B located the barge floating near the navigation channel and towed it back to Tidewater’s facility.

Upon inspection of the barge’s mooring lines, the Tidewater Barge Lines employee who made the initial report indicated that the mooring cable for the barge was not cut, and the ratchets used to hold it in place appeared to have been intentionally loosened. This incident could have resulted in a major shipping disaster. Either intentionally or negligently failing to secure a barge of this size on the Columbia River could have led to a major casualty. The incident is under investigation by the Coast Guard, and persons with information relating to the incident are asked to contact the Coast Guard Columbia River Command Center at 503-861-6211.

The Tidewater Barge Lines web site indicates that Tidewater Barge Lines is the largest inland marine transportation company west of the Mississippi River. Tidewater Barge Lines provides connections for truck, rail, and waterborne freight throughout the Pacific Northwest and beyond. Headquartered in Vancouver, Washington, their operating area includes 465 miles on the Columbia and Snake River systems extending from the Port of Astoria, Oregon, to the Port of Lewiston, Idaho.

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Many maritime employers require their prospective crewmen to answer a preemployment health questionnaire. These health questionnaires are rarely used in the hiring process and are instead utilized as weapons by maritime employers to attack the seaman’s credibility in cases where the seaman later becomes injured and seeks compensation under the Jones Act or Unseaworthiness Doctrine.

If a seaman fails to disclose a preexisting medical condition in response to a health questionnaire, the employer then attempts to deny the crewman maintenance and cure benefits, arguing that the seaman willfully concealed a preexisting condition. This defense to maintenance and cure claims, based upon willful concealment of preexisting medical conditions when asked to make disclosure in a health questionnaire, can be traced to the Fifth Circuit Court of Appeals decision in McCorpen v. Central Gulf Steamship, 396 F.2d 547 (1968).

McCorpen did not hold that a maritime employer asserting the willful concealment defense could recover maintenance and payments they alleged were wrongfully paid. Nevertheless, some maritime employers have improperly sought to recover the previously paid benefits made to the injured seaman. This intimidation tactic is designed to frighten seamen who have been injured through the negligence of their employer or the unseaworthiness of their vessel into not bringing suit or settling their cases for less than fair compensation.
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AUGUST 30, 2013
Only one of seven crewmen survived the March 24, 2009 sinking of the scallop fishing vessel LADY MARY. The United States Coast Guard has now released their comprehensive report into the sinking of the vessel, concluding that a combination of safety problems contributed to the vessel’s sinking and the crewmen’s deaths.

The Coast Guard determined that sometime in the early morning hours the crew of the LADY MARY removed the lazarette hatch to utilize an electric pump to dewater the lazarette compartment located in the stern of the vessel. Underwater photographs of the sunken vessel showed the lazarette hatch open with a dewatering hose coming out of the transom and discharging over the transom. When the pump was being utilized, the lazarette hatch could not be closed. The Coast Guard concluded that it was probable the LADY MARY’s lazarette flooded through this open hatch, which then allowed water to board the vessel up the transom. Two of the LADY MARY’s four deck scuppers were improperly blocked with metal plates. The blocking of the scuppers allowed waves coming aboard the vessel to be trapped between the deck’s bulkworks. The combination of these factors, according to the Coast Guard, led to progressive down flooding of the vessel and loss of stability.
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Laws regarding saving human life are not always cut and dry. According to federal law, 45 USC Section 2304, the master of a vessel must aid anyone at sea who is in danger of losing their lives, as long as such rescue can be performed without serious threat to the master, the master’s vessel, and those on board. However, maritime law is in agreement with common law in that an individual, including a vessel master, has this statutory duty to assist those in peril at sea only when a certain relationship exists, such as carrier/passenger, vessel/seaman, and employer/employee; also, whoever has caused a danger at sea must aid any persons or property they have endangered. Further, whether because of an established relationship or as a Good Samaritan, if an individual attempts a rescue which results in further harm due to negligence, recklessness, or wantonness, he or she may be held liable for damages.

How does this relate to the United States Coast Guard, which is a federal agency, and USCG employees? Does the USCG have a duty to provide rescue on demand? What standards of performance and care apply to the USCG, and under what circumstances can the USCG be held liable?
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On January 30, a 23-year-old fisherman was air-lifted from F/V NORTH SEA, a Seattle-based Coastal Villages Region Fund crab boat. According to reports, NORTH SEA crewmembers called the Coast Guard that afternoon when the man was seen suffering seizure-like symptoms.

According to the Coast Guard, NORTH SEA was about 60 miles southwest of St. Paul, Alaska, at the time. Conditions at the time are said to have been 6-foot seas and 29mph winds. The Coast Guard deployed a Jayhawk helicopter from Air Station Kodiak and airlifted the fisherman to St. Paul for medical attention.

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The Coast Guard received a May Day message at approximately 2:30 a.m. last night from the fishing vessel GENESIS A. The vessel was reportedly aground on a sand bar at the mouth of Willapa Bay near Leadbetter Point. A helicopter crew from Astoria, Oregon, hoisted the four crewmen and their dog to safety. There were no reported injuries to the crewmen. The cause of the grounding is unknown at this time, and the Coast Guard is assessing potential environmental damage. Leadbetter Point is a large and pristine National Wildlife Reserve. The sand bars and shoals at the mouth of Willapa Bay are constantly in a state of change, and the bar is recognized as hazardous to cross during winter months.

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