News

The Seaman’s Protection Act and Retaliation

April 8, 2021

Those who work at sea are often forced to work in historically dangerous conditions. Fortunately there is recourse for any fisherman who is required to work in unsafe conditions, though many are not aware of these rights.

In short, the Seaman’s Protection Act 46 U.S.C. §2114 (SPA) enacted by Congress in 1984 protects a seaman from a variety of dangerous workplace activities and vessel owner practices. Seamen, including fishermen, who are required to work in unsafe conditions have the right to refuse to do so and also to report, for instance, safety violations, to the federal government, primarily either the United States Coast Guard or the Occupational Safety and Health Administration (OSHA). Doing so, as well as many other activities a fisherman might employee to protect him- or herself, are considered protected activities under the Act.

The Act also provides that vessel owners cannot retaliate wrongfully against fishermen for exercising these rights.  If they do, they are subject to a number of penalties, including having to pay the fisherman’s legal fee and costs and, in certain circumstances, will be ordered to pay punitive damages. Check out this report in “WorkBoat” that demonstrates what happens when the SPA is enforced.

Full Limits of $1 Million Policy for Passenger Who Survived Motor Vehicle Crash

March 31, 2021

FWY’s client, a 24-year old resident of Scituate, MA, was a late night passenger in a hired vehicle. On the way to dropping the client off at his house, the driver blew through a stop sign at an intersection with a major thoroughfare, and ran into the side of a garbage truck which was being operated lawfully through the intersection. The client’s right leg was fractured in several places, most notably his tibia, fibula, and femur.

He was hospitalized for several weeks and then was forced to undergo a series of surgeries including fixation of the broken bones, skin grafting, wound debridements, and several periods of agonizing physical therapy. Now left with gruesome scars and a permanent limp, the client will never be capable of working in the types of physically demanding jobs for which he had been otherwise qualified.

Read the full outcome of the events that followed here.

 

So Many Losses: Promoting Mental Health Support for Commercial Fishermen

March 26, 2021

From  the dangers of the sea, to the backbreaking work and  ever-changing climate and regulations, to the devastating loss of family and friends, the job of a commercial fisherman takes it’s toll on all who ply their trade in this line of work.  All too often the fear of the physical demands of the job are secondary to the fear and anxiety of an industry that leaves many fisherman in such financial uncertainty. There is evidence that change is coming to address these issues, albeit slowly, and many in the fishing communities themselves are leading the charge.

Recently Hakai Magazine wrote an article entitled – “Mental Health and the Modern Fisherman”  – that discusses these under-reported concerns that have burdened the minds and hearts of fisherman everywhere.

As a member of the fishing community who is working for change, and was interviewed for this article, put it -  “Fishermen, just like everybody else, deserve happiness and a good life,” she says. “If they’re feeling weighed down for other reasons, then we need to find the support for them to be healthy.”

Please take a few minutes to read the full article here.

$3.6 Million for Millwright in Fall From Scaffold

March 17, 2021

FWY’s client,  a resident of Rochester, NY and a member of the millwright’s union, was injured as the result of a scaffolding accident that occurred at a microchip processing plant in upstate New York.    At the time of the accident, the plant was in the final stages of construction.

The accident occurred when the lightweight aluminum scaffolding toppled over as it was being pushed from one work location to another, while FWY’s client was “riding” the top section of the two-level scaffolding.

Read the full write up here.

In Support of Fishermen: The Crucial Role of Wives in Fishing Communities

March 11, 2021

In discussions of all the hardships and hard work fishermen face, the determination of their wives – who stay onshore and get a myriad of equally important work done in support of the fishing community – largely goes unnoticed. This appears to be true both in terms of a lack of recognition for the day-to-day organizing and planning they provide, as well as in the policies that are enacted to support fishermen.

Change has certainly been coming and many wives have long begun organizing. In Massachusetts, the Gloucester Fishermen’s Wives Association (GFWA) is just one example of their show of strength.  As a non-profit organization promoting the New England fishing industry, they help to preserve the Atlantic Ocean as a food supply for the world, and assist active and retired fishermen and their families to live better lives.

For more details about the impact wives play in their fishing community, check out this illuminating article in The Guardian entitled, “Fishermen’s wives: how unsung efforts keep a way of life afloat”.

Benzene Causes Cancer: Is it Actionable?

March 5, 2021

Diesel fuel and the exhaust created by its combustion has been linked to several adverse health conditions related to the blood and bone marrow. Studies have confirmed that at least one particular type of cancer, Acute Myeloid Leukemia (AML), is strongly linked to benzene exposure.

Pursuant to the Jones Act, which required vessel owners to maintain a reasonably safe workplace, if you are a seaman who has worked on a fishing vessel, tugboat, or any other form of ocean going vessel, and you have been exposed to diesel exhaust fumes over the course of your career and have recently been diagnosed with any form of cancer including AML that has been linked to benzene exposure, you may have a right to bring an action seeking damages against any of the vessel owners whose negligent practices unnecessarily and dangerously exposed you to these diesel exhaust fumes.

Here’s the thing – as we have mentioned in past articles, the fumes that contain benzene are often invisible. Benzene has a sweet, aromatic odor that, if you can smell, you are being exposed to at a dangerous level. Many experts believe that there is no safe level for benzene exposures. However, OSHA has published regulations governing the maximum permitted amount of benzene emissions. The link to OSHA’s benzene regulation can be found here.

Being diagnosed with cancer is devastating and if it should happen to you, you need all the support you can get. Count us here at Flynn|Wirkus|Young amongst those who can provide you support. We will scrutinize all the workplace exposures you may have had and determine the best legal approach to get results. We will begin with diesel but also establish evidence of any other toxins in the workplace associated with the illness at hand. We consult with top medical experts to prove your case.

If you find yourself in this situation and suspect that you have been exposed to Benzene in your line of work, and have developed a condition, please contact us today at 617-773-5500 or email us here for a free evaluation of your potential case.

 

Fishing Vessels, OSHA Guidelines and Covid: Are You Covered?

February 26, 2021

Is your fishing vessel taking adequate precautions to protect you and your fellow crewmembers from acquiring or transmitting the COVID-19 virus? As you know, fisherman are required to work and live together during trips at sea in poorly ventilated quarters, in close proximity to each other for long periods of time. These working conditions present a perfect environment in which the COVID-19 virus is likely to be transmitted from one person to another if any member of the crew is infected.

If you’ve been out fishing during the pandemic has your vessel taken precautions to protect you and other crewmembers? Below is a brief summary of the COVID-19 related OSHA directives. You can visit OSHA.gov to review their complete guidelines here.

“The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

If you have gotten sick with COVID-19 on or shortly after a fishing trip you may have rights to sue the vessel and the vessel owner for damages related thereto for failure to provide a safe workplace under the Jones Act.

Call us at 617-773-5500 or contact us here for a free evaluation of your current COVID-19 related situation.

“How Do You Feel?” Asking for a Fisherman

January 22, 2021

How does your back feel? Sore? Are you in pain? Does the pain radiate down into your legs or your buttocks, your thighs, your hamstrings, even to your feet? Do you have numbness in your lower extremities? If you’re a fisherman and you’ve been working for any period of time you probably feel these symptoms. If you listen to your captain and your vessel owner it’s just an expected hazard of your profession. To that we call B.S.

Although arthritis is a degenerative process which takes place over time, most healthy Americans do not experience symptoms related to arthritic changes in the spine until they have become senior citizens and are no longer in the workforce.

Not so with fishermen. Why? Because the rigors of the job have exposed you to repetitive stress, awkward postures and repetitive lifting which is too difficult and too heavy and violates almost all recognized industrial hygiene ergonomic standards.

Although the vessel owners will tell you that this is not preventable, it most certainly is. Want proof? Go to your nearest Home Depot or Lowes and take a look at the packaging on any heavy item. Take a toilet for instance. What will you see? WARNINGS telling you that the item is too heavy to be lifted by one person, requires at least two people or mechanical assistance to lift, and should not be lifted, even once, without it being done with the proper manpower, the proper mechanical assistance and in the proper manner.

Why? Because all industries, except fishing, recognize that lifting heavy items – even one, and especially repetitively – poses a significant risk for causing backing injuries and, over time, accelerating the rapid onset of degenerative and arthritic changes in your spine.

What’s more? The Jones Act and OSHA both require vessel owners to protect you as a fisherman from being exposed to injuries caused by lifting heavy items, either once or over time. If you are feeling symptoms related to low back pain and you have been fishing for a period of time, you may be entitled to recover damages under the Jones Act for your vessel owner’s negligence in exposing you to the stressors which cause this pain.

If you wonder if you fall into this category 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.

Business as Usual: Why Hasn’t the Fishing Industry Caught up to Industry Standards?

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.

What Does the New Administration Mean for the Jones Act

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