Maritime Injury Law Blog

For the past ten years, maritime workers aboard ships and fishing vessels at sea have been able to cheaply stay in contact with their wives, children and girlfriends, and even run a shoreside business, utilizing the ship’s e-mail system. There has never been much privacy on a ship at sea, but most crewmen think their ship-to-shore e-mails to their wives and girlfriends are confidential. Few crewmen realize that those e-mails on company provided computers and accounts may not be confidential, even though the crewman is using a private password. A recent United States Supreme Court decision, City of Ontario v. Jeff Quon, et al., 130 S.Ct. 2366, suggests that employees utilizing company owned computers may not have a reasonable expectation of privacy that their e-mails will not be read by their employer.

Continue reading "The Slimy Sea - Employers Hacking Into Injured Crewmen’s Shipboard E-mails" »

Wesley Keller, a member of the Alaska State House of Representatives, and Vice Chair of the Alaska House Fisheries Special Committee, was cited June 11, 2010, for an illegal sport fishing violation. Keller was fishing with two poles near the entrance to Halibut Cove in Kachemak Bay. He was issued a $110 citation for the violation. Keller, who is a republican from Wasilla, was elected to the Alaska House of Representatives in 2008.

Under the Jones Act, the evidentiary proof a seaman needs to present to establish a causal connection between his employer’s negligence and his injury is very slight. A Louisiana Appellate Court has reaffirmed this standard in Bancroft v. Mitchell Offshore Marine, 2010 WL 198219 (2010 La. App. 3 Cir.). The crewman in Bancroft claimed in part that he aggravated a preexisting back injury in a collision between his vessel and another vessel. The crewman had a long history of medical treatment for back pain prior to the collision. After the collision, the crewman had a low back fusion. Based upon the evidence presented at trial, the Court found there was no connection between the shipboard accident and the need for subsequent surgery.

Although, at first blush, Bancroft appears to be a victory for the defense, the precedent set by the Court reaffirms long standing legal precedent relating to a seaman’s burden of proof on causation. In reviewing the case, the Louisiana Appellate Court unequivocally declared the legal principle that whatever injury the seaman suffered, including an aggravation of a preexisting injury, needed only to be established by “slight” evidence. This causal relationship has been frequently referred to as the “featherweight” burden of proof as to causation in a Jones Act negligence case. The Appellate Court in Banccroft was divided as to whether or not the injured seaman had proven the necessary causal link, and the trial court seems to have rejected the injured seaman’s evidence of an increase in his symptoms and impaired working ability. Therefore, the verdict was affirmed after increasing the award for pain and suffering for the back injury for increased pain caused by the collision.

Yesterday, the Coast Guard issued an order requiring the cargo vessel STX DAISY to remain at anchor in Port Angeles, Washington. During a routine Coast Guard boarding of the vessel in the Strait of Juan de Fuca, the Coast Guard suspected the vessel’s Master showed signs of intoxication. The 587 Panamanian flagged vessel was in route from China to Olympia to load timber. The U.S. Attorney’s office is investigating the incident for possible violation of United States laws.

March 29, 2010 - The Supreme Court of the United States has rejected a petition to decide whether or not the spouses of non seamen injured on the high seas may make a claim for loss of consortium. Denying a writ of certiorari, the Court let stand the Eighth Circuit Federal Appellate Court’s decision that the General Maritime Law does not allow recovery of loss-of-consortium damages for injuries to non seamen outside of state territorial waters. The Supreme Court did not issue a final decision, it simply chose not to accept the issue for review at this time. The Eighth Circuit noted that spouses of Jones Act seamen are not permitted to collect such damages. The Eighth Circuit’s decision, Doyle v. Graske, 579 F3d 898 (2009), is in agreement with the Fifth and Ninth Circuit Court of Appeals. In many cases, spouses of non seamen injured within State territorial waters, (3 miles), may recover for loss of consortium damages.

In a landmark decision, the Washington State Supreme Court has reinstated an 8 million dollar default judgment entered in favor of a car crash victim seriously injured while a passenger in a Hyundai Accent. The Washington State Supreme Court stated that trial courts need not tolerate deliberate and willful discovery abuse and that in appropriate cases, entry of judgment in favor of the opposing party may be warranted.

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.

Fisherman from outside of the State of Alaska who paid “out of state fees” for commercial fishing licenses and permits from 1984 to 2004 will receive up to $ 70 million dollars in compensation. As the result of a class action lawsuit filed in 1984, the Alaska Court has ruled that the State of Alaska must reimburse out of state fisherman for excessive charges. The Court held that charging the non-Alaska fisherman a fee differential violated the privileges and immunities clause of the United States Constitution. Much of the $70 million dollars is the result of the 11% compound interest rate that was set on the damages. Prior to 2004, the State of Alaska had customarily charged non-residents as much as three times more for fishing permits and licenses than it charged Alaska residents. The refunds must be approved by the Alaska State legislature but are anticipated to be paid out to claimants beginning in 2010. The compensation plan is complicated and not all non-residents will receive compensation. Issues still remain over reasonable attorneys fees and the State of Alaska’s contribution to those legal fees.

November 25, 2009

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.

A Washington State King County jury has awarded total damages in the amount of $1.6 million dollars to a crewman injured on an Alaska fish processor owned by Icicle Seafoods. $1.3 million dollars of the award was for punitive damages for Icicles’ wilful and wanton failure to pay maintenance and cure benefits as required by Federal law. Mr. Clausen, the injured crewman, was represented by Jim Jacobsen of the Seattle based maritime injury law firm of Beard Stacey & Jacobsen.

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.

Erin Reiman has been charged with murder of fisherman John Adkins. The crewmen were in Ilwaco aboard the F/V TIGER on July 5, 2009 when the murder is alleged to have taken place. According to information contained in the Court files, the murder happened as follows: Reiman and Adkins had recently become partners in the fishing vessel and brought the vessel to Ilwaco for repairs. Adkins and another crewman, Walter Bremmer, had been visiting bars in Ilwaco and thereafter, Adkins returned to the vessel. When Bremmer returned to the vessel, he witnessed Reiman and Adkins fighting. Reiman punched Adkins in the face and allegedly banged Adkins head into a window and threw him down the vessel’s stairs. Reiman continued to beat Adkins, he then wrapped an extension cord around Adkins’ neck and strangled him to death. Bremmer claims Reiman threatened to kill him too and ordered Bremmer to help him clean up the murder scene. The two men then put Adkins in a sleeping which they tied up with the extension cord. They stored Adkins’ body in the engine room and pretended to search for him the following day. The next day the men left port and about three miles off shore, dumped Adkins’ body overboard, weighed down with fishing gear. The murder was investigated by the Oregon State Police department and the Long Beach Police department. It appears that Adkins will stand trial on the second degree murder charges in Pacific County, Washington.

The Coast Guard has reported that it has released its final report of the sinking of the passenger vessel the LADY D. The LADY D capsized in March, 2004, killing five people in the Patapsco River in Baltimore. The LADY D was a small pontoon water vessel.

The Coast Guard cites the master’s decision to depart the dock in an approaching visible squall line. The Coast Guard also states that the vessel capsized as a combination of several factors which created an overturning motion which the vessel could not recover.

The United States District Court for the State of Massachusetts has awarded a sailor $150,000 in damages for past and future pain and suffering, as well as loss of the enjoyment of life, after losing her full sense of smell and taste following a two-vessel collision.
39-year-old Julianne Marie Evans took part in a sailing competition when she sustained her injury. The injury occurred while Evans’ vessel was approaching a buoy alongside another vessel, controlled by Donncha Kiely. In attempting to turn her vessel around the buoy, Kiely swung her boom from the port side to starboard side of her vessel. Unfortunately, Evans was next to the starboard aft corner of Kiely’s vessel. In swinging her boom from port to starboard, Kiely made her boom strike Evans in the neck, causing her to fall forward into the cockpit. Evans went in and out of consciousness for approximately ten minutes.
Evans then visited different doctors to assess her injuries. As these doctors appointments continued, Evans began to lose her sense of smell and taste. She visited Dr. Norman Mann of the University of Connecticut, where she underwent a series of tests related to taste and smell. After a three day test period she received a diagnosis of a permanent loss of taste and smell.
At trial, the defendant argued that the injuries did not have a major impact on Evans’ enjoyment of life because she delayed reporting and treating the injury. The Court disagreed, however, stating that Evans has “undeniably lost the pleasure of having a full sense of smell and taste.” Evans herself testified that she lost her enjoyment of “gardening, eating, particularly in restaurants, entertaining at home by cooking.” The jury ultimately returned a verdict totaling $150,000 in damages for Ms. Evans.
It is important that all mariners to immediately report the full extent of their injuries to their doctor. Late reporting of symptoms may provide the defense with arguments about causation between the injury and the event. The uncertainty may lessen the amount an injured claimant may deserve. Discovering new injuries later often takes away from a mariner’s credibility and therefore his or her claim, as it did for this case. Anyone with questions regarding this case or any injury sustained while working aboard a vessel may contact the Law Office of Beard Stacey Trueb and Jacobsen, LLP to learn your rights and options. To contact us, please call 206.282.3100 or visit our website at www.atsealawyer.com.

The U.S. District Court for the Southern District of Florida ruled that relatives who observed the drowning of a family member had no claim for the negligent infliction of emotional distress under general maritime law because they were outside the zone of danger.
Plaintiffs brought a wrongful death and related claims against a cruise line and snorkel company for the drowning of Lois Gales, Plaintiffs’ mother, during a snorkel trip in December 2006. Gales had drifted away from the snorkeling group because of bad weather and was in distress. One of Gales’ daughters was able to locate Gales and pull her to the boat. Other guests attempted to resuscitate Gales while both of Gales’ daughters watched. These attempts, however, was unsuccessful.
Plaintiffs brought action against both the cruise liner and the snorkeling company seeking, among other things, damages for defendants’ negligent infliction of emotional distress. There are a variety of limiting tests for assessing claims of negligent infliction of emotional distress on the two daughters. The three most important tests are: the physical impact test, the zone of danger test, and the relative bystander test. The court found that plaintiffs satisfied the relative bystander test because “plaintiffs were located near the scene of the accident …the shock resulted from a direct emotional impact upon plaintiffs …and the plaintiffs were closely related to victim.” Plaintiffs, however, had more difficulty satisfying the danger zone test. The precedent is that “those within the zone of danger can recover for fright, and those outside of it cannot.” The Court ruled that, because the daughters were in the safety of a boat, they were outside the danger zone and therefore cannot recover for fright. Plaintiffs’ claim for negligent infliction of emotional distress was therefore dismissed.
The law office of Beard Stacey Trueb & Jacobsen, LLP believes this case, as well as others like it, unfairly limit damages. Obviously the daughters in this case suffered a great deal. Sometimes, however, the law just does not address all the injuries after such a tragedy.
The lawyers at BSTJ, LLP handle all types of cases involving mariners’ injuries and fatalities while working at sea. Our lawyers have successfully tried and settled cases in states all around the country. If you have been injured while aboard a vessel, you may want to bring a maritime claim. Please contact the law office of Beard Stacey Trueb & Jacobsen for a free consultation at 206.282.3100 or visit our website at www.atsealawyer.us.

A seaman injured in a two vessel collision was able to have a Louisiana Court invalidate his release clause and therefore bring the fishing company to trial after the vessel’s doctor’s diagnosis was incorrect.
Clifton Lewis was a mate aboard one of the vessels in the collision. Upon impact, he fell against a table where he hit his left side. Lewis was knocked down again by fellow seamen “stampeding for the exit.” Lewis complained of pain shortly thereafter and went ashore to be looked at by an orthopedic surgeon the fishing company hired. The doctor, Dr. Duval, concluded that Lewis sustained “no serious injuries, only some soreness.”
The fishing company, Omega, then hired an attorney, Alan Breaud, to settle potential injury claims that would arise from the collision. Breaud met with Lewis to explain his rights and offer a release of potential claims for $500. Lewis accepted this offer based on Dr. Duval’s assessment that his leg and side “won’t give Lewis any permanent problems.”
Six weeks after the collision, Lewis experienced increase pain and left work for another doctor. This new doctor diagnosed Lewis with two-level disc herniation. Lewis proceeded to sue Omega and the other vessel that collided, Cardinal, for his injuries. Omega argued that Lewis had forfeited his rights to a trial by signing the release form and taking the $500. The district court disagreed and allowed Lewis to proceed with his trial, which he won. On appeal, the court focused on Lewis’ knowledge of his rights. The court ruled that, because Dr. Duval’s diagnosis was drastically incorrect, Mr. Lewis did not fully understand his rights. According to the 1975 case Robertson v. Douglas S.S. Co., a “mistake with regard to diagnosis has long been recognized as cause for setting aside a seaman’s release.” The court therefore ruled that Mr. Lewis’ release form was invalid, and allowed him to bring the case to court.
Seamen who become injured or ill while working a sea should not sign an agreement of any kind without knowing your rights and full extent of your medical condition. The fishing company will, like in this case, try to settle any dispute before you fully know your rights or the extent of your injuries. Signed releases are often upheld in court, so this case should not be seen as the norm. Anyone with questions regarding this case or any injury sustained while working aboard a vessel should contact the Law Office of Beard Stacey Trueb and Jacobsen LLP to know your rights and options. To contact us, please call 206.282.3100 or visit our website at www.atsealawyer.com.

Congress is considering legislation holding the fishing industry to a significantly higher safety standard in vessel construction in an effort to decrease the fatalities suffered at sea. This bill would require training of all skippers and mandate Coast Guard inspections of vessels.
This proposed bill has been under development for over two years and is championed by Senators Olympia Snowe R-Maine and Maria Cantwell D-Wash, chair of the Senate subcommittee with oversight over the Coast Guard and fisheries, as well as Representative James Oberstar D-Minn, chair of the House Transportation and Infrastructure Committee.
This legislation results from the significant dangers of and deaths from working at sea. While there was been a substantial decrease in commercial fishing fatalities in recent years, fishermen are 25 times more likely to die on the job than the national average for occupational deaths. We were reminded of the danger of commercial fishing when the Seattle-based vessels Alaska Ranger and Katmai sank in the Bearing Sea last year, killing 12 fishermen.
55% of all fishing-industry fatalities result from vessels flooding, capsizing or sinking. To deal with such frequency, this proposed bill focuses on safer construction and maintaining of vessels. The proposed legislation seeks mandatory safety inspections and safety training for skippers every two years, inspections and training that are optional under the current regulations. The proposed legislation would also require all new commercial fishing vessels that are over 50 feet and operate more than three miles offshore to adhere to stricter construction and equipment-installation standards. Finally, all fishing vessels over 50 feet and approaching their 25th anniversary of their launch would come under alternative safety standards. These standards would be similar to the extremely successful changes implemented in Alaska during the 1990s. Congress hopes that these improvements will climb to the international forefront on fishing-vessel-construction standards after lagging behind Europe for so long.
While the bill is yet to receive formal opposition in Congress, some object to such strict regulations. The objectors assert that the limited safety improvements for “smaller vessels,” which are vessels between 50 and 79 feet, are not significant enough to outweigh the 10 to 15 percent increase in construction cost. This will, many claim, discourage investment in new vessels. However as Representative Oberstar states, “It’s going to save lives, and you can’t measure a life saved in dollars and cents. If you can’t afford to operate safely, then you shouldn’t operate.”
The law office of Beard Stacey Trueb and Jacobsen encourages Congress to pass this legislation. The maritime lawyers at Beard Stacey Trueb and Jacobsen represent injured mariners throughout the nation in claims involving the Jones Act and General Maritime Law. For any questions regarding maritime law or injuries sustained while working aboard a vessel, contact us at 206.282.3100 or visit our website at atsealawyer.com.

On June 25, 2009, the United States Supreme Court ruled in the seaman’s favor! The High Court decided that seamen are entitled, as a matter of general maritime law, to seek punitive damages for their employers’ willful and wanton disregard of its maintenance and cure obligation. Punitive damages are now permitted in cases where the employer acts in bad faith. Punitive damages are designed to punish the employer for bad faith treatment of its employees regarding medical payments.
It is a too frequent story when an employer refuses to pay an injured seaman’s entitlements of maintenance and cure. After being injured on the job, seamen are in need of a consistent income and medical treatment. It was this concern that led to the creation of maintenance and cure, which is a vessel owner’s obligation to provide food, lodging, and medical services to a seaman injured aboard a vessel. While suffering from an injury, both a seaman and his or her family are often dependant on maintenance and cure payments.
Frequently, unfortunately, vessel owners intentionally withhold maintenance and cure payments from seamen. Before this Supreme Court case, employers were able to withhold such obligatory payments with limited financial penalty, leaving the injured seaman with no income and numerous medical bills. These seamen often have to turn to various high interest loans to pay these bills, a last resort to many.
This new case, Atlantic Sounding Co., Inc., v. Townsend, 2009 WL 1789469 (June 25, 2009), allows injured seaman to sue for punitive damages when the employer, in bad faith, refuses to pay the maintenance and cure claims. Punitive damages are damages awarded by a court against a defendant as a deterrent or punishment to redress an intentional wrong committed by the defendant, in this case the employer’s intentional disregard for his or her maintenance and cure obligation. This case will hopefully persuade employers to honor their maintenance and cure obligation, as the financial penalty of withholding such payments may significantly outweigh any gain by the employer.
The law office of Beard, Stacey, Trueb and Jacobsen has successfully held employers accountable for their maintenance and cure obligation in hundreds of cases. In many cases, our lawyers have successfully taken the employer to court and been awarded payment for all missed maintenance and cure payments as well as obtained a court order forcing the employer to continue maintenance and cure payments in the future. For any questions regarding maintenance and cure or maritime law, or wish to discuss an injury sustained while working aboard a vessel, please contact the law office of Beard, Stacey Trueb and Jacobsen at 206.282.3100 or visit our website at atsealawyer.com.

The Fifth Circuit Court of Appeals recently ruled a seaman may bring a Jones Act case against his or her employer after the three year statute of limitations if the severity and source of the seaman’s injury or illness were not known until well after the action leading to the illness. In this case, Plaintiff Herbert Pretus sued his employer Diamond Offshore Drilling, Inc. after being diagnosed with hypersensitivity pneumonitis and fibrosis of the lungs. The illness arose after Pretus was assigned to clean a rig that was allegedly “wet and moldy” in 1999. Pretus began complaining of “cold-like symptoms,” including a cough, fever, aches, congestion and chest tightness shortly after cleaning the rig. Pretus was given antibiotics and antihistamines and his condition slowly improved as he finished cleaning the rig and left for home. After a few years, Pretus’ symptoms worsened to the point where he had shortness of breath and coughing. Diamond sent Pretus to Dr. James Patterson for an independent examination in March, 2005, where Dr. Patterson diagnosed Pretus with hypersensitivity pneumonitis. Pretus subsequently filed suit against Diamond in September, 2006 under the Jones Act and General Maritime Law.
The Fifth Circuit Court of Appeals ruled Pretus’ three year statute of limitations did not begin until the examination by and diagnosis from Dr. Patterson. The general issue in the case is when Pretus should have discovered his illness, as therefore his cause of action, so as to trigger the running of the three year statute of limitations under the Jones Act. Under the Jones Act, the cause of action accrues when “a plaintiff has had a reasonable opportunity to discover the injury, its cause, and the link between the two.” Diamond cited numerous cases where an unknowingly ill plaintiff was unable to sue the employer because the three year period had passed. Diamond asserted that these cases set the precedent and Pretus’ statute of limitations should not be extended.
The Court focused on three issues to decide Pretus’ claim: first, the severity of the event and the initial symptoms; second, the plaintiff’s correlation of his ultimate injury with the event; and third, plaintiff’s reasonable reliance on the opinions of medical experts. The Court found that Pretus’ description of his initial symptoms as “cold-like,” along with the positive reaction to antibiotics and antihistamines, led Pretus to believe his illness was nothing similar to the severity of the cases that Diamond cited. This discredits the claim that Pretus should have known about the severity of his illness. Upon assessing the second issue, the Court emphasized that Pretus was not suing “based on those initial symptoms,” another sharp distinction between the cases Diamond cited. The Court further denied the existence of a traumatic event and the severity of Pretus’ symptoms prior to his shortness of breath in 2004. The third issue of reliance on medical experts further distinguishes Pretus from the other cases Diamond cited. Pretus diligently sought treatment for his medical problems when the initial symptoms presented themselves in 1999 before successfully receiving treatment. It was only after such treatment was ineffective in 2004 that Pretus sought further medical treatment. After extensive testing, including high resolution CT scans, the physicians were able to properly diagnose Pretus’ illness as “chronic interstitial lung inflammation, permanent fibrosis (scarring) of his long tissue and hypersensitivity pneumonitis.” Dr. Patterson explained that the condition is extremely difficult to diagnose and is commonly misdiagnosed in its early stages. These factors led the Court to rule that the cause of action occurred in 2004 when Pretus received his diagnosis, well within the three year statute of limitations under the Jones Act. Having satisfied all three issues, Pretus was awarded a trial where he brought his claim against Diamond Offshore Drilling, Inc.
Seamen injured or ill while at sea must file suit against their employer within the three year statute of limitation. The Pretus case should be considered as a rare exception to the rule. Seamen should not wait to file such a claim as the Court will very likely dismiss your case and therefore your opportunity to be compensated for your injuries. Anyone with questions regarding this case or any injury sustained while working aboard a vessel should contact the Law Office of Beard, Stacey, Trueb and Jacobsen to know your rights and options in court. To contact us, please call 206.282.3100 or visit our website at www.atsealawyer.com.

The United States Second Circuit Court of Appeals recently ruled that the fee imposed on ferry passengers was unconstitutional under the Commerce Clause and the Tonnage Clause. This case questions the constitutionality of a fee imposed on passengers traveling via private ferry from Bridgeport, Connecticut to Port Jefferson, New York. The Bridgeport Port Authority (BPA) imposed this fee after leasing the dock space from the privately owned ferry company, the plaintiff in this case. The BPA argued that this lease entitled them to charge a fee for passengers making the voyage.
The Court disagreed, however, asserting that this fee was both too high and unconstitutional. First, the Court relied on the “dormant” Commerce Clause jurisprudence, which determines the constitutionality of government imposed fees on individuals engaged in interstate commerce. The Court determined that this clause was designed to make the users of state-provided facilities responsible for a reasonable fee needed for the construction and maintenance of the facility. Ultimately, the Court ruled that the fee imposed by the BPA was not a fair approximation of a ferry passenger’s use of facilities because the BPA sought to maximize profit as oppose to simply pay for the construction and maintenance of the dock.
This fee also violated the Tonnage Clause, which “prohibits…duties to raise general revenues.” The Court used testimony from the BPA’s own expert witness to justify their ruling. During the trial, an expert for the BPA stated that the BPA “act[s] as an incubator for growth of economic activity,” confirming the Court’s belief that the BPA was focused on increasing revenue rather than simply paying for the construction and maintenance of the dock.
For all questions related to this case, maritime law, other cases and injuries, please contact the law offices of Beard, Stacey, Trueb and Jacobsen at 206.282.3100 or visit our website at www.atsealawyer.com.

A recent decision by the United States Supreme Court overruled the Alaska Supreme Court, ruling that the City of Valdez, Alaska improperly imposed a personal property tax upon the value of large vessels traveling to and from the city. Justice Breyer, writing for the majority, asserted that this tax violated the Tonnage Clause, which forbids a “State… without the consent of Congress, to lay any duty of Tonnage.” This ordinance imposed a personal property tax upon all “boats and vessels of at least 95 feet in length” that regularly traveled to the city, which would require a charge for the privilege of entering, trading in, or lying in a port. This ordinance would ultimately apply to 28 vessels in its first year.
While the direct language of the ordinance was not contradictory to the Tonnage Clause, the Court interpreted the language of the clause in light of its purpose to restrain the states from exercising taxing power injuriously to the interests of each other. Breyer also dismissed the city’s claim that the tax was simply a value-related tax on personal property, asserting that vessels are not taxed in the same manner as other property of the citizens. Justice Breyer was joined by Justices Scalia, Kennedy, Ginsburg and Alito. In addition, Chief Justice Roberts and Justice Thomas filed an opinion concurring with a portion of Justice Breyer’s opinion.
For all questions related to maritime law, cases and injuries, please contact the law offices of Beard, Stacey, Trueb and Jacobsen at 206.282.3100 or visit our website at www.atsealawyer.com.

The National Marine Fisheries Service (NMFS) recently passed new regulations requiring operators to provide a USCG-approved pilot ladder on domestic fishing vessels with a freeboard of greater than four feet. This pilot ladder will be a safe and enforceable means for authorized personnel to board larger fishing vessels. This is required for vessel operators to carry out their duties under the Magnuson-Stevens Fishery Conservation and Management Act and the Atlantic Tunas convention Act. This law resulted from the NMFS’ assessment that the prior safety standards for the boarding ladders “proved to be inadequate.”
A “pilot ladder,” also referred to as a “Jacob’s ladder,” is a flexible ladder with rigid steps with non-skid coating, flexible rope between rungs to reduce crushing injuries, anti-twist rungs, and rounded edges to reduce damage to the vessel and for safety. This new rule also establishes the vessel operator as the individual responsible for providing a pilot ladder when conditions exist that require such equipment. This will avoid situations where boarding personnel were required to provide their own ladder or abort the boarding, situations that occurred before this rule was enacted.
For questions regarding this new rule, an injury sustained while boarding a vessel or while working aboard a vessel, please contact the law office of Beard, Stacey, Trueb and Jacobsen at 206.282.3100 or visit our website at www.atsealawyer.com. The lawyers of Beard, Stacey, Trueb and Jacobsen specialize in personal injury cases sustained while working on a vessel.

A judgment for 4.1 million dollars has been entered in favor of the Estate of a Tacoma Longshoreman by United States District Court Judge Robert Bryan. The judgment arises from a 40-foot shipping container accident in November of 2006 at the Port of Tacoma. The longshoreman’s estate alleged that a negligently packed container allowed plywood cargo to shift in the container causing a rollover of the yard tractor resulting in the death. The judgment included 2.5 million dollars for loss of consortium, love, and affection to the deceased wife and children, economic losses of over 1.1 million, and predeath pain and suffering for the several hours decedent survived before his death. The longshoreman’s Estate was represented by Beard Stacey Trueb and Jacobsen. The case was filed in United States District Court for the Western District of Washington at Tacoma.

Some injured seamen who rely upon maintenance payments for economic support while recovering from injuries, have been dealt a blow by the Ninth Circuit Court of Appeals. In Aguilera v. Fishing Company of Alaska 535 F. 3d 1007 (August 2008) the Court held that a Texas State lien for back child support could be deducted from a seaman’s maintenance payments. The Court reasoned that under Texas’ law, maintenance is “wages”or “disability and workers compensation benefits,” subject to withholding for back child support payments.

When a seaman or fisherman is injured or becomes ill while working aboard a vessel, they are entitled to maintenance under the General Maritime Law. Maintenance is a daily living allowance provided to a crewman while he is recovering from his shipboard injury or illness. Maintenance payments are a minimal living allowance for room and food, and the typical rate is $25-$35 per day until the seaman has reached maximum medical improvement, or the seaman is fit to return to duty. Maintenance payments to injured seamen allow them to survive just above the poverty line, and do not include any living allowance to support the injured crewman’s family.

The Ninth Circuit’s recent ruling in Aguilera v. Fishing Company of Alaska means that an injured seaman, who may be receiving as little as $25 to $35 per day as a living allowance from his employer, may have his maintenance benefits cut in half, with the other half going to DSHS to repay them for back child support obligations.

In a discriminatory and retaliatory practice, some fishing companies utilize child support liens to punish seamen who seek maintenance benefits. When a seaman becomes injured and seeks compensation for negligence or unseaworthiness, the employer then contacts DSHS to alert them that the seaman is receiving maintenance payments and to determine whether or not the crewman has a back child support obligation. Having been alerted by the injured seaman’s employer, DSHS then files a notice of lien against the seaman’s maintenance and claim for Jones Act compensation.