Know Your Rights as a Witness to a Fishing Vessel Accident

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.

If you have any questions about this section of the Jones Act or any other maritime law matter, please don’t hesitate to call at at (617) 773-5500 or email us here.