Boat on the sea
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The fishing vessel CHEVELLE collided with the jetty near Newport, Oregon on Friday and is reportedly breaking up in heavy weather. One witness described crab pots shifting on the vessel after it took a hard roll while crossing the bar. The 70-foot crab vessel is owned by Chad Hall of Newport. Fortunately, the four crewmen aboard the vessel all survived the incident. Three crewmen were airlifted to safety by the Coast Guard, and the fourth crewman was able to climb onto the jetty and make his way to shore. Salvage operations cannot get under way until the weather subsides. There is some concern that the vessel may break apart and sink, obstructing passage to the harbor. The incident is under investigation by the Coast Guard.

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A crewman was washed overboard and presumed drowned from the 42-foot GLACIER SPIRIT on Friday. The accident happened near Sand Point, Alaska. Weather conditions at the time of the accident were reported to be 25 mph winds with 12-foot seas. The Coast Guard unsuccessfully searched a forty square mile area for the missing crewman. Details of the accident were not available; however, this accident again reinforces the need for all deckhands to wear work vests and train regularly in man overboard procedures.

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The history of piracy is a long one, and piracy remains a threat in modern times. The potential for pirate attack may exist in any waters, but during the past decade it is Somali pirates along the east coast of Africa and in the Indian Ocean who receive the headlines. Billions of dollars in international maritime trade has been lost due to cancelled or delayed shipments and higher expenses. The pirates have attacked ships, often taking prisoners for ransom and keeping the ships to sell or use in future attacks. There are a number of theories as to why the number of Somali pirates has risen to such a level. One theory is that Somali fishermen resort to piracy because the dumping of toxic waste by other countries has made fishing for a living impossible for Somali nationals. Other factors include decades of political unrest, war, and ineffectual government leadership, which make it easier for organized crime to move in and take advantage of a desperate situation.

In 2009, Combined Anti-piracy Task Force 151 (CTF 151) was formed to combat the increasing boldness of the pirates. CTF 151 is an international force which has been commanded by members of various navies from 25 countries, including the U.S., Pakistan, Turkey, South Korea, and New Zealand. The mission of CTF 151 is to protect shipping lanes from piracy and to restore freedom of navigation and legitimate maritime commerce.
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Too many casualties in the fishing industry, including amputations and death, are caused by unguarded machinery parts catching a worker’s fingers, limbs, clothing, or hair. Long hours with little rest, the fast pace of work, and rolling seas increase the risk when the moving parts of a machine are not properly guarded from human contact during operation and properly shut down during maintenance. Coast Guard regulations on machine guarding are very clear and the courts tend to rule accordingly.

In Fuszek v. Royal King Fisheries, Inc., 98 F.3d 514 (1996), the Ninth Circuit Court of Appeals found that a seaman is entitled to full damages, and not subject to reduced damages for comparative negligence, when the employer violates U.S. Coast Guard regulation. In Mr. Fuszek’s case, the question was not whether the machine was guarded, for all admitted and agreed that it was not guarded. The question was whether Mr. Fuszek’s award for damages should be diminished due to what the defendants claimed was Mr. Fuszek’s comparative negligence.
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Beard Stacey & Jacobsen supports our local Navy service members and families through the Navy-Marine Corps Relief Society (NMCRS). NMCRS is a non-profit organization and, as such, programs are funded completely through charitable donations.

NMCRS case workers are trained to address the specific financial needs of service members, veterans, as well as their eligible families and survivors. NMCRS services include student loans or grants, interest-free emergency loans or grants, and financial counseling at no charge. A number of NMCRS offices also run thrift shops and have visiting nurse programs. If you would like to learn more about NMCRS, please visit www.nmcrs.org.

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A preliminary report for 2010, made this past August by the U.S. Bureau of Labor, shows that fishers and those in related fishing industry work continue to have the highest fatal injury rate of all employment categories in the U.S. This chart sums up the higher than average occupation-related death rate in the fishing industry:

Year – Fatalities per 100,000

2010 – 116

2009 – 200

2008 – 129

2007 – 112

2006 – 141

2005 – 118.

According to NTSB data, the death rate averaged 158 per 100,000 between 1992 to 2008 for the fishing industry, whereas the national work fatality average for that time period was four deaths in 100,000. Recognition of this unconscionable death rate, as well as the high rate of non-fatal injuries, and the financial and emotional costs involved in work-related death or injury has driven a focus on better fishing-related safety.
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BACKGROUND
In the matter of Samson Ili vs. American Seafoods Company, LLC, and American Triumph, LCC, et al, a Washington Federal trial case, Samson Ili worked as a factory processor aboard F/T AMERICAN TRIUMPH for four years until February 9, 2007, the date of his injury. AMERICAN TRIUMPH is part of the American Seafoods Company (ASC) fleet. He had received favorable work reviews during that time. His work duty consisted mainly of manually lifting and transferring pans of frozen fish from a plate freezer to a moving conveyor belt. The pans of fish weigh between 50 and 75 pounds each. This was often done while the ship was rolling, making balance an ongoing issue. There were no handrails or stable areas on which to lean, so Mr. Ili had fallen a few times over the years during unpredictable seas. Typically, Mr. Ili would take a wide stance, adjusting foot position as needed to compensate for the rolling of the ship.
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In March of 2011, in Tuyen Thanh Mai v. American Seafoods Company, LLC, the Washington State Court of Appeals upheld the ruling that American Seafoods Company (ASC) did not have the right to deny seaman Tuyen Thanh Mai maintenance and cure when she did not agree to ASC’s demand for an independent medical examination (IME) prior to her knee replacement surgery. The Court also held that Mai is entitled not only to the maintenance and cure that ASC had withheld from her, but also to compensatory damages and attorney fees, sending a strong message to employers that maintenance and cure are fundamental rights not to be denied a seaman.
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Last week the F/V RANDI capsized near the entrance to Coos Bay. Three men were aboard the boat, which was reportedly loaded with gear in anticipation of the opening of the dungeness crab season. Jim Peterson of Coos Bay was reportedly in the wheel house of the vessel when the capsizing occurred. Two other deckhands were saved, but Peterson was not found. The Coast Guard is investigating the cause of the accident. The Washington and Oregon dungeness crab fishery remains one of the most deadly and dangerous fisheries in the world.

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The usual rule in litigation is that each party pays its own attorney’s fee. It’s called the “American Rule.” There are exceptions to this rule, however. One such exception has to do with maintenance and medical bills of a seaman who is injured while working. In a case pending in front of the Washington State Supreme Court, a case being handled by Beard Stacey & Jacobsen, PLLC, all sorts of issues regarding an attorney’s fee award are being considered when the employer fails to pay maintenance and cure. Maintenance and cure is a fundamental right to each seaman who has been injured while in the vessel’s service. The OSCEOLA, 189 U.S. 158, 175, 23 S. Ct. 483, 47 L. Ed. 760 (1903); Vaughan v. Atkinson, 369 U.S. 527, 532, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962). This is a no-fault obligation that must be paid. Some employers, however, refuse to fulfill their obligation and willfully withhold maintenance and cure. The pending Washington State Supreme Court case, Clausen v. Icicle Seafoods, Inc., addresses what remedies are available to the seaman when the employer fails to fulfill his or her obligation to maintenance and cure.
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Contact Information
Stacey & Jacobsen, PLLC Seattle, Washington
4039 21st Ave W. #401
Seattle, WA 98199
Phone: 206-282-3100 Toll Free: 877-332-5529 Fax: 206-282-1149
Stacey & Jacobsen, PLLC Anchorage, Alaska
205 E Benson Blvd #321
Anchorage, AK 99503
Phone: 907-751-2588 Toll Free: 877-332-5529

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