January 14, 2021
The scenario we are often confronted with is a client who has been injured by a condition, device or practice that has been allowed to exist for decades and the vessel owner’s response is, essentially, “It’s always been that way, what did you expect?”
Simply put, we expected that the fishing industry would do what all other industries in this country have d0ne, and which Congress mandated through the adoption of the Jones Act and OSHA. That is, continually analyze the workplace and develop and institute continuous safety improvements to ensure that you’re providing a reasonably safe workplace.
Just because something has always been allowed to exist does not mean that it was not unnecessarily dangerous and therefore something that the vessel owner could be held responsible in damages .Take scupper doors for example. They never work. They certainly do not work properly. Virtually every vessel in the North Atlantic fleet, for time immemorial, has been plagued by vessel doors which are difficult to open, difficult to close and oftentimes get stuck. Yet the fishing industry has done nothing to improve the design of these doors leaving the inherent but routine dangerousness alone and leaving worker exposed to unnecessary injures. And in a case we currently have about this condition, the vessel owner’s defense is simply – What do you want us to do? Scupper doors have always been like this.
If you have been injured by a condition on a vessel, whether that be a device, part of the vessel or even a work practice that has been allowed to exist in an unsafe manner, to the point that it has simply blended into the routineness of the everyday workplace, you have a potentially strong case and a right to sue your maritime employer for damages that occurred as a result of that injury and that device or practice.
Please contact us via email or at (617) 773-5500, so we can discuss how adhering to industry standards would have made your workplace better. We can help you to explore your rights under the Jones Act and general maritime principles.
November 17, 2020
The transition from one White House administration to another post election, including one where the party also transitions, is often a time of uncertainty. This can be more evident when an administration spends only four years in office instead of the the historic goal of eight. Questions surrounding whether positive inroads made will remain intact or be disassembled arise, as well as whether new goals will take focus to the detriment of others.
A recent article from WorkBoat suggests that there may be no cause for concern in the maritime industry in terms of issues related to the Jones Act, Covid-19 aid and other related policies. While climate change and the environment may indeed come into sharp focus related to issues surrounding climate friendly fuels and “green shipping”, this remains to be seen as the country awaits the results of the Senate elections.
As Pamela Glass, the Washington, D.C., correspondent for WorkBoat and author of the article states - “The industry will likely continue to have the bipartisan support that it has enjoyed over the years in Washington, since action on maritime policy and fiscal priorities do not generally fall along party lines.”
Read the full article here
October 29, 2020
Have you ever heard of “ergonomics” or “industrial hygiene”?
Ergonomics is the study of a person’s working environment. Industrial hygiene is the science of protecting and enhancing the health and safety of people at work and includes studying and dealing with the health and safety hazards in the workplace.
These concepts were hardly know through the mid-1900s but slowly gained traction to the point that they are now considered scientific disciplines and, in fact, are fields of major study at some of our best colleges and universities. In addition, most industrial workplaces in the United States have recognized and embraced these concepts and used them to improve the safety of their workplaces and the working conditions of their employees. In fact, many industries have employees who are trained ergonomists and industrial hygienists whose sole job it is to study the workplace, to observe it, and to maintain safe working conditions They are tasked with constantly seeking improvements in the healthy working environment and safety across industries except one workplace that we know of – the fishing industry.
You will never find an ergonomist on the staff of any fishing vessel. Nor will you find an industrial hygienist. You are also unlikely to find in the entire United States fleet, a vessel that has had an ergonomist or an industrial hygienist look at the working conditions on their vessels. Instead, even routine operations on boats, things that are accepted as “just the way it is,” are non-ergonomic and dangerous.
In any other industry these things would be eliminated by improvements to the conditions, to the equipment, to the tools, to the tasks, to whatever it would take to make such dangerous working conditions safer.
This is why American industries over the last fifty years or so have invested so much money in ergonomics and industrial hygiene for one purpose – to make the work conditions that its employees face safer and healthier, and to eliminate accidents and injuries.
In stark contrast, vessel owners and captains couldn’t care less. For decades the fishing industry has turned a blind eye to safety and health and perhaps nothing bears this out more than the fact that these terms – “ergonomics” and “industrial hygiene – might as well be a different language on the docks of New Bedford, Gloucester, and other places where fishermen make a living.
We are starting in our cases to attack vessels and vessel owners for their failure to employ the most basic ergonomic and industrial hygiene principles. We are retaining some of the most pre-eminent experts in these fields to advance our theories.
If you have been injured on a vessel, even by an accepted practice, or some piece of equipment that the vessel owner tells you has always been there and there’s no better way to do it, please contact us via email or at (617) 773-5500, so we can discuss how ergonomics and industrial hygiene would have made your workplace better. We can help you to explore your rights under the Jones Act and general maritime principles including seaworthiness, and your potential right to sue your employer for damages if your injury has been caused by a non-ergonomic or industrial dangerous tool, piece of equipment or practice.
October 23, 2020
Have you ever had the grip? If you have worked as a fisherman you probably have experienced this condition which involved pain and swelling in the hands, wrist and forearm. Although fisherman have traditionally worked through this condition, grinning and bearing the pain, because it is such a common component of the working environment, vessel owners are responsible under the Jones Act for compensation for any damages which arise from a fisherman developing the grip.
The grip is essentially what is called a repetitive stress, repetitive motion or overuse injury. When you are working with your hands manipulating tools and objects, gripping and grabbing heavy equipment and machinery, and performing tasks such as cutting scallops, you are putting excessive and repetitive forces on the joints of the hands, fingers and the wrists. When this occurs over time, especially in someone who is older or deconditioned, swelling of the spaces in your joints through which your nerves pass is the result. This in turn causes pain, numbness, and tingling. Sometimes this goes away, sometimes it does not.
This is very similar to, if not the same, in some circumstances as carpal tunnel syndrome. In industries that provide worker’s compensation insurance or their employees, cumulative trauma injuries like carpal tunnel syndrome (the grip if you will) are covered, meaning that worker’s compensation will pay for medical treatments related to carpal tunnel syndrome, the grip, or other similar work related conditions, including surgery (which essentially opens the gap in the joints to allow the nerves to pass more freely) and also pay the wages of any worker who has this conditions during any period of disability.
In some other industries, where worker’s compensation is not provided, but federal law applies (such as the railroad industry which is covered by FELA), workers have the right to sue their railroad employers for damages related to the workplace development of any such issues. The same applies to the maritime industry and fishing in particular. If you are a fisherman experiencing symptoms such as swelling in your hand, fingers, wrist or forearm, or pain or tingling, whether it goes away or not, you may have the right to sue your employer, under a federal law called the Jones Act, for damages related to the development of this condition.
If you are experiencing any of these symptoms and would like to discuss what your potential rights might be please call us at (617) 773-5500 or email us here. We have extensive experience in maritime law and are happy to help you understand your rights as a maritime worker.
October 11, 2020
I know I addressed this topic a couple weeks ago, but I feel the need to address it again because it is so important.
Here’s the scenario. An accident happens on a vessel, your fellow crew member is hurt; you witness it; you have information about the happening of the accident. The accident may have been caused by an unsafe practice, or a poorly maintained piece of equipment, or something else, but you know what happened. You may also know something about the history, for instance, how the vessel owner and captain may have ignored the condition and failed to take measures to address it. A crew member is injured severely. He or she may never even return to work again. They may be getting maintenance and cure, but if you have been in this situation before you know that is not enough to pay the bills. So you’re injured fellow crew member files a lawsuit, as is his or her right under The Jones Act, which Congress adopted a century ago in order to shift the burden of responsibility in maritime injury cases onto the vessel owner in order to provide “broad liberal recovery” for the injured Jones Act seaman.
At some point, you will likely be approached by an insurance adjustor or an adjustor/investigator retained by the insurance company that insures the vessel. This person is not employed by the vessel or the corporation that owns the vessel and really has very little relationship, if any, with the vessel owner. The investigator works for the insurance company and that’s who pays his bills. The insurance investigator has no authority or even influence over your relationship, for instance your ability to be employed by a vessel. You may also be contacted by an attorney representing the vessel. They too are hired and paid for by the insurance company. Even though they represent the vessel, their bread is buttered by the insurer. The lawyer also has no influence or authority over your ability to work on any vessel. Oftentimes the lawyer representing the vessel and the insurance investigator work in tandem or together and may approach you at the same time. You are free to speak to the investigator and/or the lawyer. And I suggest that you do, and tell the truth, the whole truth and that you do not bend your memory to what you may be led to believe the insurance investigator or the lawyer want to hear. When you speak about what you observed you should not do so clouded with any concern that the investigator or the attorney can blacklist you or otherwise influence your ability to work. When you are talking about what you observed you should not be concerned that if you say certain things that might be detrimental to the vessel owner’s case that this will somehow be used against you. You also should not be intimidated by anything the lawyer or the insurance investigator might say to you which would lead you to think that you should not tell your whole story.
You also will likely be approached by me or somebody at my firm if we happen to end up representing your injured crew member. We simply want to know what happened and it is very important for us, in the investigative stages, in order to adequately represent our injured clients that we find out what the witnesses saw, heard, and were told. We simply want to know the truth so we can figure out what happened in any given case and figure out how to best represent our injured client. You do not have to speak to us. That choice is yours to make. We hope that if you are ever in this situation that you will, and that you will tell us the truth and you will do so freely and without fear of consequence.
You also should know that you are protected by another law that Congress enacted a century ago from sharing what you know with us as the lawyers for the injured crew member. 45 U.S. Code § 60, which has been made part of the Jones Act, essentially protects the right of the injured crew member – and by extension his or her lawyer – from conducting an investigation to determine what happened. It also makes it a crime for a vessel owner or its representatives to prevent you from voluntarily providing information to an injured co-worker’s attorney.
More specifically, the statute states, in relevant part: “any contract, rule, regulation, or device whatsoever, the purpose intent of effect of which shall be to prevent employees of any common carrier (in a Jones Act case this means the vessel owner) from furnishing voluntarily information to a person in interest (in other words, your injured co-worker or his or her attorney) as to the facts incident to the injury or death of any employee, shall be void, and whoever, by threat, intimidation, order, rule, contract, regulation, or device whatsoever, shall attempt to prevent any person from furnishing voluntarily such information to a person in interest, or whoever dischargers or otherwise disciplines or attempts to discipline any employee for furnishing voluntarily such information to a person in interest, shall, upon conviction thereof, be punished of a fine of not more than $1,000 or imprisoned for not by more than one year, or by both such fine and imprisonment for each offense.”
Although this statute has some legalese, it is clear no one can prevent you from voluntarily sharing information about what you observed, and any attempt to prevent you from sharing that information is a criminal act. This specifically includes disciplining you or discharging you or attempting to discipline you for voluntarily providing such information.
I will probably repost this statute periodically so long as this blog is active because it is so important. Justice cannot be accomplished if one side is squelching the truth and preventing its voluntary disclosure to the other. Let me make it clear, we hope that you will freely share the information that you know with the lawyer and the insurance investigator that are hired by the insurance companies when there is an accident on a vessel. But fair play, and Congress’s clear intent in adopting § 60, requires that you also provide that information voluntarily to us as the lawyers for your injured co-worker.
One final point on this. Oftentimes, we are finding that the insurance investigator is explicitly telling witnesses to maritime injuries that they are prohibited from speaking with the lawyers like us who represent your injured co-workers. This is clearly a violation of § 60 and is therefore a crime. Again, as the statute makes clear they cannot do this to you. Sometimes, we are hearing, the investigator may be a bit more obtuse in their threat. For instance they might say that they would prefer that you not speak with the lawyers for your injured co-worker. Of course this sends the same message. We are also hearing that sometimes the investigator might say the vessel owner would prefer you don’t speak with the lawyer for your injured co-worker. Either way the intent is to prevent you from doing so and it is a violation of § 60, i.e. a crime.
Don’t fall victim to these practices. You owe it to the truth, you owe it to justice, and you owe it to your injured co-worker to voluntarily provide the information that you know and federal law protects you if you decide to do so.
October 8, 2020
Devoting this space this week to tease an upcoming announcement of significance to our clients, our firm, and the community we serve. It is part of the philosophy and model of our firm that we give back. Following this guiding principal, we are currently working on establishing a foundation, the purpose of which will be to work with community leaders and industry stakeholders to improve safety throughout the fishing industry and to bring safer working conditions to the fishermen, in particular, the North Atlantic Fleet.
Part of our efforts in this regard are also focused on charitable giving. We are currently working with some of the leading charitable organizations that provide needed financial and support services to fishermen and their families and would like you all to stay tuned to this space and our social media platforms where we will be announcing a very exciting initiative very shortly, in conjunction with these organizations.
October 1, 2020
“Can I Still Receive Compensation Under the Jones Act Even if I Contributed to the Accident?”
That is often the question we hear from commercial fishermen and often what keeps him/her from pursuing their rights under the Jones Act.
The truth is this:
Under the Jones Act even if you are negligent you can recover your damages. However, the amount you recover will be reduced by the percentage of negligence that a jury or other fact-finder attributes to you. By way of an example, if you sue your employer under the Jones Act and the matter proceeds to trial and the jury awards you $100,000 but also finds that you were 75% at fault or negligent and that your negligence caused you to be injured, you will only recover $25,000, i.e. the damage award will be reduced by your percentage of the negligence.
Another important concept with respect to the concepts of comparative negligence is a legal principle called per se negligence. If you are injured in a maritime accident and your Jones Act maritime employer violated a safety regulation which contributed to cause your accident, then comparative negligence, if any, simply does not apply. In other words, where an employer has violated a safety regulation, they are not entitled to the benefit of having a jury or fact-finder consider the inured employee’s negligence at all. Thus, if you are injured in a case where your employer violated such a regulation, a jury will not typically even hear evidence of your negligence because it is simply not relevant.
Simply put, if a Jones Act maritime employer violates a safety regulation and it causes an accident the employer is strictly liable for that accident no matter the facts.
The complexities of the Jones Act and other types of maritime litigation can be daunting.
Flynn|Wirkus|Young is extremely knowledgeable in maritime law and we welcome the opportunity to assist you. We have built a reputation for providing exceptional representation to fishermen, lobstermen, longshoremen, shipyard workers, maritime industrial workers, and other subcontractors who have been victims of workplace accidents, catastrophic injuries, or discrimination.
If you have any questions in this regard, especially if you feel you have been injured on a commercial fishing vessel, please don’t hesitate to email us here or call us at (617) 773-5500.
September 24, 2020
Truth. It seems like it should be a simple concept.
We find, however, that the truth is sometimes malleable especially when it is subject to outside influences, biases, prejudices and self-interest. We have found over and over in our cases that witnesses – to incidents, accidents, and particularly conditions and vessels, and the practices employed by vessel owners and captains – are reluctant to speak the truth because of a variety of reasons.
Often times, we find that witnesses, particularly rank and file crew members, will adopt the theory of defense that the vessel owners, insurance adjustors and their lawyers want them to. This is often because they feel that if they do not adopt and toe the party line, so to speak, that they won’t be hired on future trips and/or they will get a reputation that they are not loyal to vessel owners and will find themselves on the sidelines when fishing trips are crewed.
Time also can play a role on the truth. Over time people forget things. Over time people think things that did not happen actually did and the longer the time goes on the cloudier even an honest person’s view of the truth or belief in the truth becomes. This is why it is very, very important, if you are a fisherman, to your fellow fishermen who have been injured, that you at all times tell the truth about what you have seen, heard and observed aboard fishing vessels.
The insurance adjustor and the lawyer for the vessel owner are not your friends.
We have seen they will try and get you to say things that may not jive with the truth as you know it and that they will put pressure on you to adopt the story that they want to tell. It is up to you to decide whether or not you want to go along with this. However, you should know that there are Whistleblower laws that would protect you from being discriminated against if you tell the truth rather than what the insurance company defending a vessel owner from a Jones Act lawsuit wants you to say.
Another issue to keep in mind is that after an accident happens, our investigators will try to speak to you and obtain a statement form you close in time to when the accident has happened. It is important to the injured crewmember that we represent that you cooperate with our investigator. This does not mean that you tell the investigator what you think we want to hear. Quite to the contrary, we want you to tell our investigator the truth so that we can analyze the case properly and advise our client properly. We want you to tell the truth to our investigator at the earliest moment in time after the accident because that is the time that your memory will be the freshest and the most accurate. So if an accident happens and our investigators contact you, please speak to them and please tell them the truth.
Almost assuredly, the insurance investigators and/or their lawyers will also seek to talk to you. We strongly urge you again to tell the investigators and the defense attorneys the truth as well and then let the chips fall where they may. When an accident happens on the vessel due to the fault, negligence, and/or ignorance of the vessel owner or the captain you owe it to yourself and the ongoing safety of the fishing community to tell the truth especially when you know that the vessel owner or the captain has done something wrong and you would actually be shooting yourself and your fellow fishermen in the foot if you do not tell the truth when you have observed a vessel owner’s or captain’s negligence or an unseaworthy condition.
I leave you with one final thought on this topic.
There may come a day when you are injured. We certainly would not wish that on you or anyone else. However, if it does happen, I can assure you that you will want your fellow crew members to tell the truth about what they have seen and heard. If not then the truth which is eventually told to a jury will not be the actual truth of what happened and there can be devastating consequences as a result thereof.
FWY is extremely knowledgeable and experienced in handling many types of maritime litigation. If you have any questions in this regard, especially if you feel you, your friends or family members have been injured on a commercial fishing vessel don’t hesitate to email us here or call us at (617) 773-5500.
September 17, 2020
An Elegy for Melville:
“Whenever I find myself growing grim about the mouth; whenever it is a damp, drizzly November in my soul; whenever I find myself involuntarily pausing before coffin warehouses, and bringing up the rear of every funeral I meet; and especially whenever my hypos get such an upper hand of me, that it requires a strong moral principle to prevent me from deliberately stepping into the street, and methodically knocking people’s hats off–then, I account it high time to get to sea as soon as I can. This is my substitute for pistol and ball. With a philosophical flourish Cato throws himself upon his sword; I quietly take to the ship.”
- Moby Dick
It’s easy to forget about the concept of legacy. The thought of the traditions and memories we leave behind. It’s easy to forget. And it’s getting easier by the day. But perhaps if some good has come out of our common, shared experience over the last few months, it’s the opportunity to slow down. To think. To remember. And to ponder what’s next.
Over the last few years in representing fishermen as part of the New Bedford community, we’ve learned a lot about legacy. The legacy that Melville addressed – of the need to return to sea; the salt and the waves; the danger and the freedom. You can feel these things at the docks and in the markets and in the worn cobblestones. You sense it in Melville’s pew in the Bethel. The sense that sea, for all its dangers and challenges, presents an opportunity. One of adventure and of a better life. It’s honest work, which is a rare commodity in this age.
So as we look toward the fall, we pause and reflect on the fortunate opportunity we’ve had to become a part of – however small — this community that in the tradition of Melville, quietly takes to the ship.
September 3, 2020
This week we will be taking a break from using this forum as an opportunity to discuss injuries to fishermen and instead will be using this space for a more solemn announcement.
We here at Flynn|Wirkus|Young were saddened this week to learn of the untimely death of Jordan Rushie, a member of our firm’s family. Jordan has been affiliated with the firm for several years, having started with us as an associate manning our Philadelphia office.
Although more recently he had gone on to establish his own successful practice, he had, right up until the time of his death, continued to work with us in various matters. Jordan was a warm, kind and ambitious go-getter – the type of lawyer who always put his clients’ concerns above his own. He was also a unique character with many interests and served his beloved hometown of Philadelphia with undying loyalty and pride.
We are deeply saddened by his loss and wish his family our sincerest condolences. He will not soon be forgotten at our firm and we will certainly miss him.