Chinook, Washington crab fisherman David Lethin has ownership interest in the BALLAD. Lethin owns multiple other vessels including the ALEUTIAN BALLAD which is now be utilized in the Alaska trade to show tourists a working crab boat. Lethin’s vessels have also been highlighed in the Discovery Channel’s Deadliest Catch television show.

The BALLAD is home ported in Chinook, Washington and is a 56 foot crab fishing vessel. Coast Guard records indicate the vessel is owned by Ballad Inc. of Chinook, Washington. The crew of the BALLAD issued a may day call at 1:00 p.m. reporting the man overboard. Helicopter crews from North Bend and Astoria responded to the call and a motor life boat crew from Cape Disappointment in Ilwaco was also dispatched to the search for the crewman. A dive team from Clatsop County was able to recover the crewman’s body whose identity is being withheld pending notification of family.

Tragically, this death again highlights the extreme dangers of the Washington and Oregon State Dungeness crab fisheries. Resent studies released by the National Transportation and Safety Board showed that Dungeness crab fisherman in Washington and Oregon were ten times more likely to die while working than other commercial fisherman. The Coast Guard had implemented operation Safe Crab in an attempt educate fisherman on common safety concerns. Owners of some crab boats in the Ilwaco and Chinook areas require all crewman to wear a floatation type work vest while working on deck.

Families of fisherman who are lost at sea have claims for compensation under Federal Maritime law. Those laws are very complex, particularly where the case involves a death on the high seas. Beard Stacey & Jacobean is one of the nations most experienced maritime law firms in representing families in claims for wrongful death.

Court Rules throughout the nation permit parties in litigation to serve upon opposing parties requests to produce information and records relevant to the lawsuit. This discovery process is central to our American System of justice. In this case, the plaintiff Jesse Magana was rendered a paraplegic in the accident as the result of an alleged negligent design of the car passenger seat which collapsed in the accident. In 2000 and 2001, Magana submitted discovery requests to Hyundai asking for Hyundai to produce documents relating to prior seat back failures in Hyundai products.

Hyundai objected and provided evasive answers to Magana discovery requests seeking information about seat back failures in Hyundai cars. After years of litigation, including a first trial and appeal, Magana moved for an order to compel full and complete responses by Hyundai to the discovery request. Hyundai opposed the motion to produce the prior seat back failure documents claiming it was burdensome and would not lead to discovery of admissible evidence. The trial court rejected Hyundai’s arguments and agreed with Magana and ordered Hyundai to produce the documents. After this order was issued in November, 2005, Hyundai then disclosed that there had been nine other instances of known seat back failures. This disclosure was made just two weeks before Magana’s second trial was to commence.

Based upon Hyundai’s previous failure to disclose the nine prior seat back failures, Magana moved for entry of default judgment. Magna argued that Hyundai delayed in producing the documents for nearly five years severely prejudicing his case. The trial court entered a default judgment against Hyundai for failure to comply with the discovery rules. The trial court found that Hyundai had willfully violated the discovery rules by not disclosing the prior seat back failures when requested to do so in discovery.

The Washington Appellate Court similarly found that Hyundai’s discovery responses were false, misleading, and evasive. However the Appellate Court held that entry of a default judgment in favor of Magana was too severe of a sanction based upon a finding that there was inadequate evidence to support the claim that the late production by Hyundai substantially prejudiced Magana.

The Washington State Supreme Court reversed the Appellate Court’s decision and found that in fact, the entry of the default judgement was proper. The Washington State Supreme Court held that Hyundai should have timely responded to Magana’s discovery requests relating to prior seat back failures. Importantly, the decision stated that Magana should not have had to file a motion to compel to require Hyundai to produce the relevant documents. Critical to the decision to enter a default judgment was the determination that Hyundai’s late disclosure had prejudiced Magana’s ability to prepare for trial. As noted by the trial court, sanctions for discovery violations should not reward a party who has committed the violations and granting a continuance would only have exacerbate this situation in Magana case.

Most importantly, the Washington State Supreme Court ruled in Magana that broad discovery is permitted under the Court Rules, “it is not grounds for objection that the information sought will not be admissible at trial if the information sought appears likely to lead to discovery of admissible evidence. The Supreme Court Stated:

"If a party objects to an interrogatory or request for production, then the party must seek a protective order under CR 26(c). If the party does not seek a protective order, that the party must respond to the discovery request. The party may not simply ignore or fail to respond to the request. An evasive answer or misleading answer is to be treated as a failure to answer."

The Magana decision places the burden on the party resisting relevant discovery requests to either produce the documents requested or seek a protective order. A party in Washington State can no longer hide critical, relevant documents behind objections and evasive answers or they will be running the risk of severe Court ordered sanctions.

Maritime injury lawyers representing injured seaman and fisherman frequently battle issues such as that presented in Magana. The practice previously utilized by big maritime employers of objections to discovery and providing incomplete and evasive answers will have to change in the wake of the Washington State Supreme Court’s decision in Magana. Complete crew list should be produced, accidents aboard other vessels owned by the Defendants should be produced, and complete earning records should all now be produced. The burden will be on the employer to get a protective order from the Court rather than simply “ignoring” or objecting to valid requests for discovery.

The Coos Bay bar entrance is notoriously dangerous in heavy seas and high tides. Studies by the National Transportation and Safety Bureau have identified the Oregon Coast Crab fishery as the most dangerous fishery on the West Coast. Tragedy appears to have been diverted in this case, but safety precautions must be followed at all times to prevent seamen and fishermen lives from being lost.

Reversing a Seattle District Court decision, the Ninth Circuit Court of Appeals has held that an injured Alaska fish processor has presented sufficient evidence that his case must go to trial.

Samson Ili brought a Jones Act injury claim against American Seafoods based upon the theory that it was negligent to require crewmen to work 16 hours a day, seven days a week, for months at a time. Ili was injured at the end of his shift, after months of work, while lifting 70-lb bags of product. The vessel reportedly took a roll and Ili lost his balance while handling the heavy bag, resulting in his injury. The Ninth Circuit ruled that a reasonable jury could find that these work conditions were a breach of American Seafood’s duty to provide a safe work environment. The Court held that even if the 16-hour-day work shift were customary in the fishing industry, that this does not establish a lack of negligence. The Court further noted that the long hours could be determined to be evidence that the American Seafoods vessel, American Triumph, was under-manned at the time of the crewman’s injury. The case will now be returned to the District Court where a jury will determine whether or not American Seafoods was negligent and their vessel unseaworthy.

Few Jones Act cases are subject to being dismissed upon motions for summary judgment. In almost all cases an injured seaman should have the right to have his case tried before a jury. In deciding motions to dismiss a Jones Act injury claim, all evidence must be taken in a light most favorable to the injured seaman. Ili v. American Seafoods reinforces this longstanding principle that seamen are entitled to all favorable inferences when vessel owners and employers attempt to dismiss their injury claims.

In February of 2006, Dana Clausen, a 55 year old Louisiana fisherman suffered back injuries in a lifting accident aboard the fish processing barge BERING STAR. Icicle disputed Clausen’s right to maintenance and cure. During the course of trial Icicle was ordered to produce a secret medical report they had commissioned relating to Clausen’s need for further treatment. The physician had reviewed Clausen’s records had recommended further treatment for Clausen and noted the need for possible surgery in the future. Icicle ignored the report, and subsequently commissioned a second medical report from a different physician indicating that Clausen needed no further treatment.

Under Federal maritime law, employers owe their crewman a good faith duty to administer maintenance and cure benefits. All doubts as to entitlements of benefits are to be resolved in favor of the injured seaman. Where there is conflicting medical evidence, the issue should be resolved in favor of the injured seaman. The King County jury found that Icicle was unreasonable in their failure to pay Clausen maintenance and cure and that Icicle’s conduct was willful and wanton.

In June, 2009, the Supreme Court of the United States made it clear in Atlantic Soundings v. Townsend that punitive damages were available in maintenance and cure claims. In addition to punitive damages, a seaman may also recover reasonable attorney fees for the improper withholding of maintenance and cure. Post trial proceedings will now determine Clausen’s rights to an award of additional attorney fees.

The Washington and Oregon commercial crab fishery has a high incidence of deadly accidents. This may be the result of smaller boats operating in what can sometimes be severe weather conditions. However, the Coast Guard notes that most all casualties are preventable if good safety practices are followed. Remarkably, passage of safety regulations for commercial fishing vessels has been opposed by many fishermen due to the high cost of implementation.

Although some safety regulations have recently been passed, they have only slightly lowered commercial fishing fatalities. Many of the regulations do not apply to the Washington and Oregon commercial crab vessels because of their size, and the fact that most all of the vessels are designated as “uninspected.”

The loss of life in the Oregon and Washington crab fishery has been large. A study conducted by the National Institute of Occupational Safety revealed that the death rate in Oregon was 6 times higher than in other commercial fisheries, and nearly ten times higher than that of Washington crab fishermen.

The Coast Guard believes that further regulation of the crab fishing fleet in Washington and Oregon would save more lives and help limit injury accidents. The Coast Guard points to poor vessel conditions, inadequate training in emergency response and use of survival gear, and lack of awareness of stability issues as leading causes of casualties. The Coast Guard’s short term goal is to improve safety awareness in the Oregon and Washington crab fleet. The long term goal is to propose further regulations requiring safety examinations, emergency drill preparedness, crew training, and further improving communications with fishermen regarding casualty prevention.

Believed lost in the tragedy are the vessel’s captain, Kenneth Rose Sr., his son Kenneth Jr., and crewman Larry Forrest. All of the crewmen are reported to be from North Carolina. The loss of the crew of the F/V Sea Tractor follows the loss of six crewmen from the F/V Lady Mary. The Lady Mary was also home ported in Cape May.

The Coast Guard, Norfolk Fire Department and two Good Samaritan vessels responded to the capsizing. Four people were rescued from the water and transported to the Hospital. However, one person has died as a result of his injuries.

There is no indication as to the cause of the capsizing.

The Coast Guard dispatched a rescue boat to the scene. It has been reported that two persons died at the scene and the third person at Nassau University Medical Center. The four other passengers were taken to local hospitals for treatment. Their conditions, as well as the cause of the accident is unknown.