Boat on the sea
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Injuries at sea are often caused by equipment that fails under normal use. Lines snap. Crane parts fail. Deck boards break. Ordinarily, when those items of equipment are produced or inspected immediately following an injury, then the case can be relatively straightforward. But, when there is a passage of time, broken equipment is lost or thrown away. Memories fade – sometimes conveniently fade. There is no question that the lawyer’s job is much easier – and the case much stronger – when the lawyer can get to the scene of the injury soon after it happens and the broken equipment can be preserved.

What happens when the equipment is thrown away? What happens when the injury scene is purposefully altered? There is a rule of law regarding “spoliation” of evidence.

Spoliation of evidence is generally defined as either willfully or negligently destroying or loosing documents or objects that could be used during legal proceedings. Washington State defines spoliation as the “intentional destruction of evidence.” Inherent in this is the assumption that the party which destroyed the evidence, even if the destruction was negligent and not intentional, knew or should have known the evidence would be legally pertinent. A lack of evidence may also beg the question: Did the evidence exist in the first place?
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The Congress and the President passed a new law recently, which gives the USCG the authority to replace aging ships and aircraft with modern craft, improve USCG stations and housing, train personnel, and strengthens maritime security.

Specific to the commercial fishing industry, the Act provides the USCG more authority to amend and clarify, regulate, and enforce safety standards. Vessel and equipment standards now are to be determined based on where the vessel operates, not on where it’s registered. The goal of these uniform standards is to ensure fairness and to simplify to application of regulations. The emphasis here is on safety, both to prevent accidents and to buy survival time while awaiting rescue. The amendments in the Act include the following:
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Beard Stacey & Jacobsen, PLLC has established a landmark decision for an injured seaman before the Washington State Supreme Court. The ruling yesterday declares that there is no pre-established arbitrary cap on a seaman’s right to punitive damages for the wrongful withholding of maintenance and cure benefits.

Accepting Dana Clausen’s team of lawyers’ arguments, the Washington State Supreme Court denied Icicle Seafoods’ attempt to cap a seaman’s right to punitive damages. In Clausen v. Icicle Seafoods, Inc., Case No. 85200-6, the Washington Supreme Court upheld a jury verdict of 1.3 million dollars in punitive damages against Icicle. The jury found Icicle’s conduct in refusing to pay the injured seaman’s medical bills and maintenance in an amount of $35,000 to be willful, wanton and malicious conduct, and that it was financially motivated. The Court rejected Icicle’s argument that the Supreme Court’s decision in the Exxon Valdez case required that there be a one-to-one ratio of compensatory damages to punitive damages. The Washington Supreme Court stated the policy and purpose of punitive damages is to punish and deter egregious conduct and rejected Icicle’s argument that punitive damages should be capped based upon the size of the underlying claim. The Court noted that, because of Icicle’s conduct, Clausen, who had suffered a back injury in a lifting accident aboard Icicle’s vessel, had been forced into poverty and was forced to move into a broken down wreck of a travel trailer while trying to live on just a $20 a day living allowance.
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It was the middle of the night when Columbia River Bar Capt. Debbie Dempsey fell overboard just west of the Columbia River Bar on March 5th. Capt. Dempsey had guided a grain ship over the treacherous bar and was climbing down a jacobs latter to return to the Pilot Boat COLUMBIA when the fall occurred. Bar pilots do not wear survival suits and, instead, use a type of lighter float suit that is equipped with a water-activated strobe and emergency radio beacon. In Captain Dempsey’s case, the crew of the Pilot Boat COLUMBIA was able to quickly locate Capt. Dempsey and get her back aboard the pilot boat.

In 2006, Captain Kevin Murray was working heavy weather as a Columbia River Bar Pilot when he fell in a similar transfer, losing his life. Investigation into Captain Murray’s death in a subsequent maritime wrongful death claim brought by Beard Stacey & Jacobsen revealed a number of deficiencies in the Columbia River Bar Pilots’ training and procedures. Columbia River Bar pilots now vigorously train in search and rescue procedures. The cause of Capt. Dempsey’s accident will be investigated by the Columbia River Bar Pilots, as well as probably the United States Coast Guard and the NTSB.

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Early Saturday morning an EPIRB signal set off a search for the Warrenton-based fishing vessel LADY CECILIA and its four member crew. Coast Guard helicopters located a debris field, oil slick, and life raft just north of the Columbia River, 17 miles west of the Washington Coast. An extensive search failed to locate any of the vessel’s four crewmen, and they are presumed lost at sea. The lost crew was identified by the Coast Guard as David Nichols and Jason Bjaranson of Warrenton, Oregon; Luke Jensen of Ilwaco, Washington, and fisheries observer Chris Langel of Kaukauna, Wisconsin.

The LADY CECELIA is a 62-foot dragger owned by Dave Kent of Bay City, Oregon. Few details are known about the vessel at this time other than it was first registered in Oregon in 1991. Under Federal Regulations, vessels such as the Lady Cecelia are required to carry regularly serviced life rafts and survival suits, and crews are required to regularly be trained in safety procedures. Unfortunately, safety inspections of vessels such as the Lady Cecilia are not mandated by regulation.

Complicated Federal Maritime laws govern remedies available to families of crewmen lost in fishing accidents. Frequently, vessel owners utilize an archaic law called the Limitation of Liability Act to attempt to limit compensation available to the families of lost crew.

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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.

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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