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.
August 27, 2020
If you’re reading this you likely know that this space is devoted to topics pertaining to occupational injuries, illness and/or diseases. Put another way, we discuss here injuries and/or illnesses that workers can develop due to exposures in the workplace over time, as opposed to a single traumatic incident. To date most of our discussions have been devoted to repetitive traumas that can cause conditions like injured backs, shoulders, hips and other joints. Today we would like to call your attention to the potential dangers of exposure to diesel fuel and/or diesel exhaust.
As most of you likely know, the motors which power commercial fishing vessels run on diesel fuel. During virtually the entire time that a fisherman is engaged in a fishing voyage, the diesel engines are running and potentially emanating exhaust fumes through multiple sources. Being exposed to these fumes, especially in concentrated levels over lengthy periods of time, has been known to cause cancer.
In other words, diesel fuel and diesel exhaust are and/or contain known carcinogens. One of these components is benzene. Benzene is a natural part of crude oil and can be found in both gasoline and diesel fuel. It is one of the top twenty chemicals that are being mass produced in the United States today. It is also used to make synthetic products like plastic and can be found in pesticides, degreasers, solvents, drugs, ink and other products. Workers who are exposed to these products or fumes can be at risk for long term affects. In the railroad industry, many workers have been exposed to benzene via diesel fumes and have filed dozens of lawsuits against their railroad employers as a result of conditions and diseases they incurred, arguably as a result thereof.
Exposure to benzene can happen three different ways:
1. Through inhalation;
2. Through the skin; or
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.
Ingestion orally and through the skin can also occur; when workers end up covered in diesel soot benzene may be absorbed through the skin. Symptoms of benzene exposure include dizziness, headaches and eye/skin/respiratory tract irritations, and drowsiness. For significant exposures. You may suffer from redness and blisters around the area that was exposed. If you have been inhaling benzene for an extended period of time you might be suffering from blood disorders, distal neuropathy, and/or memory loss and long term oral exposure has even caused death in the past.
In medical studies, benzene has been associated with leukemia, acute myelogenous leukemia (AML) and myelodysplastic syndrome (MDS). It has also been linked to reproductive and developmental affects. If you would like to read more on the relationship between diesel exhaust and/or benzene and the development of cancer, which exposure to diesel exhaust in either gas or soot form, may cause, please read the links to materials that have been published by the American Cancer Society: Benzyne and Cancer and Diesel Exhaust and Cancer.
If you, your loved ones, any family members or friends have been exposed to benzene, either by breathing in or coming in contact with diesel exhaust, gasoline, diesel fuel or any other substance containing a known carcinogen, and you are suffering from symptoms which may be related to these exposures, you may have a right to be compensated under the Jones Act if your maritime employer has failed to take reasonable precautions to protect you from these exposures. So long as your condition has been caused in whole or in part by these exposures and your employer’s failure to protect you from them, especially if the levels of benzene and/or levels of other carcinogens in your workplace exceeded OSHA’s maximum allowed emissions standards, you may have a claim for damages against your maritime employer.
FWY is extremely knowledgeable and experienced in handling many types of maritime litigation. If you have any questions in this regard, especially of you feel you, your friends or family members have been exposed and have developed some kind of medical condition as a result, don’t hesitate to email us here or call (617) 773-5500.
August 20, 2020
Statute of Limitations. You’ve all probably heard that term before but might not know exactly what it means. In theory, and in typical cases, it is very easy to understand. It simply means the amount of time after an accident that you have to file your lawsuit. In Massachusetts, garden variety negligence cases are governed by three-year statutes of limitations. In the commercial fishing context the federal law governing the Jones Act also calls for a three-year statute of limitations. This means that if you are injured in an accident (for instance a motor vehicle accident, a slip and fall, a construction site accident, or some other physical trauma) you have three years from the date of that accident within which to file a complaint.
With respect to an injury that occurs as a result of a single traumatic event, the same rules apply in a Jones Act case. So if you are injured while working aboard a vessel as a result of, for instance, a defective piece of equipment, a fall, or some other direct physical trauma, you have three years from the date of that accident to file your complaint.
It gets a little confusing in the context of some other cases. For instance, the law governing professional malpractice cases, primarily medical malpractice, recognizes that a person might not even know that they are injured for some time after the incident which caused their injury. The truth is patients might think they are fine after a surgery only to discover two or three or even four years later that the surgery was botched but the injury resulting from that negligent surgery did not manifest itself until years later. In such cases, the law recognizes what is called a discovery rule which provides that the three year period of time does not begin to run until the injured person knows or should have known that they have been injured and that the injury was the result of the medical malpractice.
The law governing the Jones Act also recognizes a discovery rule in the context of occupational injuries or illnesses. This is extremely important to the community of fishermen that we service. Many of our clients have conditions such as worn out shoulders, backs, hips, knees and other parts of their body and simply assume that these conditions are a result of the aging process. Their doctors may have even told them so. However, where the aging process had been accelerated by the unsafe work practices to which they were exposed over the course of their career, fishermen who suffer these conditions have legal rights under the Jones Act to seek damages against the vessel owner.
So in these cases when does the statute of limitations start to run? That can be somewhat difficult to determine. However, as noted, the Jones Act recognizes the discovery rule. So what does this mean for you? This means that the three year window within which to file a complaint begins to run when you knew or should have known that your (fill in the blank here – torn rotator cuff, herniated disc, low back pain, arthritic hip) is the diagnosis that is actually causing you pain AND that the condition was related in some way to the working conditions to which you were exposed on a vessel. So even if you have felt it was something you would just have to live with, you may still have time to determine if you have a case under the Jones Act.
The fact is, it is very important in these cases that you seek legal advice as soon as you have been diagnosed with a condition. Otherwise the three year period to file a complaint could begin to run and you do not even know that you have rights.
Commercial fishing vessels have over the last couple of decades have been extremely fortunate that fishermen have not pursued there legitimate rights to recovery for occupationally caused injuries in the fishing workplace. If you have been diagnosed, or are suffering from what has been described to you as degenerative or arthritic condition, you may have the right to sue the vessels on which you worked for monetary recovery for these conditions.
You should not be enduring long term pain as a result of a work-related fishing vessel injury. If you are suffering from one of these conditions please do not hesitate to call us at 617-773-5500 or contact us here.
FWY is extremely knowledgeable in maritime law and we welcome the opportunity to assist you.
August 13, 2020
The concepts of ergonomics and industrial hygiene and fundamental safety principles have over the last three decades become the cornerstones of safe workplaces in virtually every industry in the United States in which manual labor, including lifting equipment, product, materials and supplies are tasks required of workers. Except of course the commercial fishing industry. When it comes to the fishermen, vessel owners are not even aware that safety principles exist. Having kept themselves blissfully ignorant, they of course have completely failed to adopt the safety principles that govern virtually every other workplace.
These principles include the establishment of safe lifting practices and procedures, orientation and training on these procedures and practices. And periodic retraining so that every worker is kept constantly aware of how to protect themselves from injuries associated with lifting items that are too heavy, lifting items repeatedly, and/or lifting and carrying items while in awkward postures such as bending, stooping or reaching.
The National Institute of Safety and Health (NIOSH) long ago adopted safe lifting equation which establishes the maximum amount under perfect conditions that any worker should be expected to lift. OSHA requires all employers to establish practices that recognize a duty to institute back prevention measures and to provide a workplace which is free from recognized hazards which are likely to cause physical harm, such as requiring all workers to lift too heavy a load which of course could injure their back.
We have found in our practice that vessel owners have done nothing to comply with these requirements or to otherwise institute and adopt safe lifting practices and techniques in the workplace and we are being retained by fishermen who are injured as a result. This is especially prevalent among more experienced fishermen who are older and whose bodies have endured the wear and tear of these dangerous activities over the course of their career.
In a case that we are currently litigating the vessel owner admitted in a deposition that they did absolutely nothing to carry out their duty to provide a safe workplace and instead left it up to the injured crew member. This is of course a violation of the NIOSH lifting equation, OSHA standards and the vessel owners’ duty under the Jones Act to provide a reasonably safe workplace. The excuse for this – communicated in our cases as the vessel owner’s defense – amounts to “this is the way it’s always been done,” “fishing is dangerous and you should have known that,” and “this is the way every vessel owner does it.”
We expect when juries hear these empty excuses that the vessel owners will be held accountable. If you, a loved one, or anyone you know have been injured due to the absence of safe work protocols on a commercial fishing vessel please do not hesitate to contact us.
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 hesitate to contact us.