COVID-19 Protections Under the Jones Act

August 6, 2020

The repercussions of Covid-19 in the workplace will be playing out on the legal landscape in the coming weeks and months as more and more people return to work with varying degrees of cautions and protections. This will be as true for maritime workers and their families as the fishing vessels continue to head out and return to their ports.In fact, the first Covid-19 fisherman death case was recently filed in the Eastern District of Louisiana. In that case- Kathy Norwood v. Rodi Marine LLC, et al. – the captain had allegedly been exposed to Covid-19 on a work assignment in New Orleans and returned to the ship. Despite remaining in his cabin he began exhibiting symptoms and, after waiting several days to seek medical attention, was diagnosed with COVID-19. Subsequently, a deckhand also fell ill and died of the virus upon returning home from the vessel.

This is clearly a failure of the vessel owner to provide a reasonably safe workplace under the Jones Act. The deceased’s widow is alleging wrongful death under the Jones Act, as well as unseaworthiness under General Maritime Law. It will be interesting to track the progress and outcome of the case.

FWY is experienced in interpreting the Jones Act and its applications. If you, a loved one, or anyone you know have been diagnosed with Covid-19 after working on a fishing vessel please do not to contact us.

Who is Safeguarding Employees as They Return to Work During COVID-19?

July 30, 2020

There is a concerning intersection of events playing out right now in the COVD-19 related world of employee safety. Namely, employers feeling pressure to go back to work, or even desiring to get back to work, and employees not always providing a safe place for them to perform their job in the midst of this pandemic. OSHA (the Occupational Safety and Health Act) was created, by its own motto, to “assure safe and healthful working conditions for working men and women” and has long required employers to record work-related injuries and illnesses which included confirmed cases of COVID-19. However, the realities of COVID-19 seem to be leaving OSHA either unable or unwilling to provide the very safety measures and enforcement they have sworn to uphold since the Act was created in 1970. Recently they put forth an updated set of guidelines designed to educate employers as to what events should trigger a report. While somewhat detailed, it leaves a fair amount of ambiguity as to an employer’s interpretation of what an “alternative explanation” for where an employee’s COVID-10 may have been contracted.

In addition, a recent article  in the Tampa Bay Times has highlighted some severe discrepancies in the rate of reporting versus the investigations being initiated, and the consequences being levied, on employers by OSHA. The scenarios referenced ranged from prisons to plasma donation centers to hospitals, where there were strong concerns that reported infractions are not being investigated. When they were investigated, the employer was not cited or was asked to simply confirm they were acting within the guidelines. Essentially, in many instances OSHA is providing what has been referred to as “non-binding” guidelines.” This is also playing out on the national political scene with the Democrats’ and Republicans’ competing attempts at legislation. The Republicans who traditionally will back employers at all costs are pushing for immunity provisions as part of any continuing Covid-related financial aid packages.

The general duty clause of OSHA requires employers to maintain a workplace that doesn’t put their employees at risk of serious harm or death.  Predictably, however, without OSHA really taking the bull by the horns here it’s giving the employers the out and they’re able to deny any responsibility. At the very least they are able to say they didn’t violate any OSHA regulations.

The safety and well-being of all employees should be of utmost importance to both employers and agencies like OSHA that provide the safeguards when that is not the case. If you or a family member feel that your COVID-19 concerns, or any other job safety concerns, are not being acknowledged or addressed please don’t hesitate to contact us. FWY is a law firm that is able to navigate the complexities that this type of matter presents and we are happy to talk to you if you think you need any assistance.

Workplace Benefits for Fishermen Under the “New Normal” of Covid-19

July 23, 2020

We’ve all heard the term “new normal” over the course of the pandemic. We all know that this term is being used as a catch all to describe all of the changes that we all will need to embrace and deal with as together we fight the Covid-19 virus. As the moniker implies, there will be new standards and norms going forward that we have never encountered that will soon become commonplace. Changes in the law are not immune and in fact will likely take place relatively quickly as the legal system seeks to adapt to the realities of the Covid-19 pandemic.

Workplace benefits is one area where the law is being forced to confront its “new normal”. One battle line being drawn on this issue is that companies, who might end up being backed by Republican sponsored litigation, are essentially seeking immunity from having to pay benefits or face lawsuits alleging that a worker was injured and had become disabled, or worse yet died, as a result of contacting Covid-19 in the workplace. Workers on the other hand would like to recover benefits and/or damages of the contract Covid-19 in the workplace just as they would have had they contracted some other illness or injury in the workplace before Covid-19. The attached article talks about this issue that this is raising and highlights that it may be a matter of proof.

As the definition of “new normal’ starts to take place over the following months, we expect that the government, both at the state and federal level, will being to pass laws and regulations defining standards for workplace recovery, in particular, what a worker will be required to prove, either in court or in an administrative context like worker’s compensation in order to establish that they contracted Covid-19 in the workplace. Keep an eye on this space and others like it to stay informed as the definition of “new normal” in this context is developed. This issue is particularly acute for commercial fishermen clientele and there may be some hope for fishermen who develop Covid-19. This is because seaman, including fishermen, are covered by the Jones Act and the common law doctrine of Maintenance and Cure. Under the Jones Act, a seaman/fisherman is entitled to recover damages in the event they can prove that their vessel owner/employer negligently failed to provide them a safe workplace and that any condition or injury he suffered – including Covid-19 – was caused in whole or in part by the vessel owner/employer’s negligence. In other words, so long the vessel owner/employer’s negligence or unsafe workplace played any role, no matter how slight, in causing a fisherman/seaman to develop Covid-19, they will be liable under the Jones Act. Maintenance and Cure should be even easier to recover because a fisherman/seaman only need to prove that the illness, injury or condition they are suffering from occurred while they were on the vessel or as a result of working conditions.

How the Jones Act and Maintenance & Cure standards are affected by upcoming regulations, legislation and case law remains to be seen. For instance, OSHA has just this week issued a directive purporting to provide guidance on the medical causation standard when it comes to an employer’s responsibility for reporting Covid-19 in the workplace. We will explore this topic more fully next week in this space.

If you, your family and/or loved ones, have developed Covid-19 and think it may be work related or due to the negligence of your employer someone else, please do not hesitate to contact us.  We already represent several clients who have either contracted and/or died from Covid-19 in the fishing industry.

Invoking Fishing Vessel Insurance Exclusions for Maritime Injuries

July 9, 2020

From time to time we encounter situations in which the injuries our clients have suffered are allegedly not covered by a vessel owner’s liability insurance policy. In some cases this may be because of what is called an “exclusion’, which is essentially a clause in an insurance policy that identifies specific causes of action as not being covered by the relevant insurance provisions.

In a non-maritime context, assuming such an exclusion is valid and enforceable, many attorneys would not be interested in taking a case given the lack of available insurance to cover any damages that they might get for their clients. In the maritime context, as noted in this space previously, there are additional avenues pursuant to which a person injured by a vessel owner’s negligence can secure recovery for their claims even in the absence of insurance. More specifically, these rules include supplemental admiralty rules which are procedural rules that apply in federal court and allow an injured seaman the right to seize and take possession of the vessel and its appurtenances, either at the outset of the litigation or after a verdict has been reached.

Although the value of a vessel depends on a variety of factors and in many cases falls somewhere between five-hundred thousand and a million dollars, the law recognizes that “appurtenances” includes the permits that the vessel owner has procured for their fishing business. The value of these permits can exceed five million dollars (related article). This is important to keep in mind that, given even in the absence of insurance, an aggressive attorney can take hold of the vessel and its permits as security for his/her client’s claims. This is unique to maritime law and makes the impact of an exclusion virtually irrelevant, provided that an injured seaman hires the right attorney, i.e. one who has no problem invoking the power of these rules to seize vessel when doing so is in the best interest of their clients. Again, as noted in a prior blog, we do not hesitate to invoke these rules and attach/arrest these vessels when it is in our client’s best interest to do so and are quite familiar with the supplemental rules of admiralty which gives us the authority and flexibility to do so.

If you or a loved one have been involved in a maritime injury and wonder if this may apply to your situation in deciding to seek remedy for your injures please do not hesitate to contact us.

Shining a Light on Addiction in the Commercial Fishing Industry

July 3, 2020

If you have been following our blogs, you will have determined by now a constant theme: the commercial fishing industry, unlike virtually every other responsible industry in this country, has failed to establish or even think about establishing the most basic workplace safety standards and programs. Today’s blog highlights yet another area – drug use and opioid addiction in the workplace.

It is an indisputable fact that in most hotbeds of commercial fishing (for instance, New Bedford) opioid use, either purely recreational heroine or injury related opioid addiction, is rampant among the available commercial fishing workforce. (see related article)

These workers are the lifeblood of the commercial fishing industry. Every fish that is put in the boat, of any species, and every dime earned by a vessel owner is extracted from the blood, sweat and tears of the brave fishermen who put their bodies and minds at risk every trip. Yet the vessel owners refuse to do anything to help these workers deal with the many problems, including opioid dependency that is so prevalent. This is outrageous in and of itself given that we are now in 2020, but when compared to every other industry in the country it is shocking.

Every other industry has workplace programs specifically tailored and designed not only to root out drug use in the workplace but, more importantly, to provide the assistance, guidance and professional care that addicted workers so badly need. The fishing industry on the other hand has adopted a don’t ask, don’t tell policy where the vessel owners know full well that fishermen are coming to work with a variety of dependencies and they turn the other cheek with no programs in place as long as fish are being put in the boat and money is being made. Saying that this is irresponsible is an understatement of dramatic proportions. In addition, these vessel owners are perfectly fine knowing these fishermen are endangering themselves and their fellow crew members by being forced to work or allowed to work while dependent on opioids or other drugs and especially when they are using them on a trip. Yet the only time a vessel owner will pay any heed to this is after an injury or, worse yet, a death takes place.  And even then the vessel owner is not trying to help the addicted worker or his family but is instead blaming the injury on that worker while cloaking a defense of the vessel owner’s own negligence in their feigned ignorance and of course by applying post-accident drug testing mandated by Coast Guard regulation in the event of certain injuries or deaths.

Imagine for a moment a heavy equipment operator known to his employer of having a drug addiction problem being allowed to operate heavy equipment in the presence of other workers without any real checks on whether that heavy equipment operator is using opioids when he shows up at work on any given day. Or a truck driver allowed to operate an eighteen-wheeler while having the same problems. Or an airline pilot. Or a railroad engineer. Or an Uber driver.
This type of convenient ignorance for profit is present in only one workplace in the United States and it must change – that is the commercial fishing industry. The rhetoric is obvious. How many fishermen must die before somebody actually does something about it?

We are currently in the process of pursuing claims on behalf of injured fishermen and their families. Even when they have been injured, or worse yet, killed as a result of their own drug dependency on the theory that the vessel owners have completely shirked their responsibility in this regard, it is notable that other sectors of the maritime industry have begun taking measures to root out drug use and dependency in the workplace and provide assistance to those valued members of their labor force who are coping with these problems. It is also time that the commercial fishing industry did the same.

If you or a loved one is dealing with opioid dependency related to injuries or conditions suffered while working on a commercial fishing vessel, or worse yet, you or a loved one have been injured or killed as a result of drug use or dependency while on a commercial fishing vessel please, do not hesitate to contact us at any time. We are here for you in your times of need.

Maritime Injuries: Any Cause, However Slight

June 26, 2020

Last week in this space we discussed the requirements that the Jones Act imposes on vessel owners to provide a reasonably safe work place and how failing to have in place fundamental safety practices such as safe lifting practices and techniques and training can expose fishermen to repetitive trauma over time which can cause injury, acceleration of otherwise normally occurring conditions and, as a result, impose liability on the vessel owner.

One very important aspect of, the law to keep in mind on this topic is the relaxed causation standard that Congress adopted in the Jones Act. Under this standard an injured seaman is entitled to recovery from the vessel owner if the dangerous workplace contributed to cause their injuries, “in whole or in part”. Over time, the “in whole or in part” standard has been interpreted on several occasions by the United States Supreme Court, most recently in 2011. In essence this language means that so long as the vessel owners negligence in providing an unsafe workplace contributed in any way, however slight, to an injury or the development, exacerbation or acceleration of a medical condition, then the vessel owner will be held responsible. Some courts have even described the Jones Act causation standard as only requiring an infinitesimal negligence, meaning that, even if there are a thousand reasons for a seaman’s injury (including age related degenerative arthritis), so long as the vessel owner’s negligence was but one of these causes, the seaman is still entitled to recover.

This is quite different than the standard that is imposed in a normal negligence case and allows recovery against a vessel owner even when there would not have been enough of a connection in a garden variety negligence case that was not covered by the Jones Act.
Practically speaking, if you have been injured even in some slight way due to your maritime workplace, your doctor needs to know when trying to determine what has caused your condition, that the Jones Act slight causation standard. Many times we are confronted with cases where doctors treating our injured maritime clients do not understand this causation standard and are reluctant to link our clients’ injuries to the workplace practices, until they are educated to the causation standard, at which time they have no problem doing so. It is very important for you, if injured or suffering from a condition that may be related under the Jones Act to your employer’s failure to provide a reasonably safe workplace, to let your doctor know the standard. Otherwise, your doctor, may end up creating statements in your medical records which are legally inaccurate and which may create issues in any potential Jones Act that you might bring against your employer.

We can help you in this regard. Indeed it is crucial for you to seek appropriate legal representation in order to determine how best to handle this issue and ensure that your doctor does not inadvertently do anything which might jeopardize your Jones Act case. If you have been injured or are suffering from effects of a condition which you feel may be related, in whole or part, in some infinitesimally slight way from the job you have been performing on a vessel, please don’t hesitate to contact us.


Your Rights as a Fisherman Under the Jones Act

June 18, 2020

Are you a commercial fisherman who is experiencing pain in the lower back, wrists, elbows, shoulders  hips or knees? If so, you may be entitled to recover damages for being forced to work, over time, in ergonomically dangerous and unsafe conditions.

Although your condition and the pain you are experiencing may be related to arthritis, and therefore attributed to the aging process, the Jones Act – a statute passed by Congress more than one hundred years ago specifically to protect the health and safety of the fishermen – allows you to recover even when the vessel owners negligence and/or unsafe workplace caused, in whole or even in part, not only the condition from which you may be suffering, but also the acceleration, exacerbation and/or worsening of the  conditions of the condition compared to how it might have developed if you had not been exposed to such a dangerous workplace.

If you feel like you have been injured at least in part due to the dangerous working conditions on the vessels that you serviced, please do not hesitate to contact us.

Know Your Safety Rights Under the Seaman’s Protection Act

June 11, 2020

Today marks the second installment of our weekly post dedicated to occupational injuries and safety issues in the commercial fishing workplace.

Many of those in the fishing community are forced to work in historically dangerous conditions, many of which could and should be remedied by the vessel owners but are completely ignored. Fortunately there is recourse for any fisherman who is required to work in unsafe conditions. Unfortunately, many, if not most fishermen, 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.

The Seaman’s Protection Act provides a powerful tool to the injured fisherman. Although navigating its exact legal contours is complicated, we are here for you. If you believe that you have been discriminated against for complaining about working conditions on a vessel, please do not hesitate to contact us to further explore and discuss your potential rights under the SPA.

To view the SPA in Spanish check the link here.

Royal Caribbean and COVID-19 – What Does it Mean for the Fishing Industry?

June 8, 2020

Crew members aboard a Royal Caribbean cruise ship filed a class action law suit against Royal Caribbean Cruises Ltd. claiming crew members were exposed to COVID-19, including three who died due to their exposure.  The complaint alleges that the crew members were required to participate in shipboard drills as well as allowed to eat in buffet settings.  The crew members have brought claims including Jones Act negligence, unseaworthiness and failure to provide maintenance and cure.  Royal Caribbean has asked a Florida federal judge to dismiss the case, alleging that the maritime claims made by the Plaintiff, Mykola Molchun, require a showing that he suffered cognizable injury and that he did not suffer any harm himself.

This case may have a broader effect on crew members in the fishing industry, as a failure to take into account COVID-related guidelines and safety measures may make fishing vessels “unseaworthy” under Maritime law.

If you are a maritime employee and have any concerns related to how this issue may affect you please do not hesitate to contact us. 

Read the full article here.

Repetitive Trauma and Negligent Workplace Practices in the Commercial Fishing Industry

June 4, 2020

We are excited to announce that starting today, and going forward across all our social media platforms, we will be bringing to the attention of our community, issues pertaining to occupational injuries in the commercial fishing industries.

Literally for decades almost every industry in this country has either voluntarily, or been forced by regulation or litigation, to dramatically improve the every day working conditions in their workplace environments. Yet standing alone in the abyss is the commercial fishing industry.   Although the fishing industry remains one of the most, if not the most, dangerous job in the country, fishing vessel owners have utterly ignored making the basic safety improvements in their workplaces that other industries have done. Nowhere is this more evident in the repetitive activities that fishermen are required to perform, including lifting awkward and extremely heavy devices, equipment and product while working long hours and contorting their bodies in awkward postures, doing these activities over and over again, on vessels which are oftentimes unsafe, and defective for other reasons, while attempting to maintain their balance as the vessel rocks and rolls over wavy seas through all types of inclement weather.

Over time the cumulative trauma that fishermen suffer causes injuries to joints including shoulders, elbows, wrists, neck, back, knees, ankles and hips, nerve damage in all of these areas of the body, which manifests itself in carpal tunnel syndrome and other nerve disorders, and also the exacerbation and aggravation of naturally occurring degenerative conditions such as osteoarthritis. Measures have been taken, beginning several decades ago in other industries, to design and implement more ergonomic practices in workplaces and also to train employees on and enforce safe lifting techniques and practices. Yet the fishing industry has utterly refused and/or ignored its duty to do so.

We at Flynn|Wirkus|Young have begun to pursue lawsuits on behalf of injured fishermen who have suffered the effects of various debilitating conditions and injuries as a result of being forced to work over the years in such grueling and dangerous conditions, exposed thereto by the utter carelessness, negligence and reckless disregard of vessel owners.

In this space over the coming Thursdays we will be providing more specific detail on what can be called cumulative trauma, repetitive stress injuries and/or occupationally induced musculoskeletal disorders. Some of our content here will be case related as the cases that we are filing proceed through the courts. We also will be announcing various public service events that we will be sponsoring and/or holding, including webinars and presentations, the purpose of which will be to educate commercial fishermen about their rights under the Jones Act and maritime common law principles to pursue claims for injuries suffered as a result of negligently induced cumulative trauma to which they’ve been exposed in their workplaces.

We are excited about our endeavors in this effort and look forward in the coming weeks and months to educating all of you out there and the community we serve through our efforts here in this space and otherwise.

Thanks for taking a peek at what we have to offer. If you feel that you have been injured as a result of being exposed to repetitive trauma and/or negligent work practice as a commercial fishermen please do not hesitate to contact Mike Flynn directly, or Client Services Coordinator Jim Comfort, at (617)773-5500.  Come visit us in our New Bedford once we have reopened after the COVID19 pandemic. You can also find information about our maritime practice on our website here.