Maritime Law Daniel A. S. Foe 2401 NW 65th Street Seattle, WA 98117

Penalties for Lack of USL&H Coverage & Crewmember Illness

Three Types of Liability Employer of Seamen Three Types of Liability Jones Act Liability The Jones Act (46 U.S.C. § 30104) and the LHWCA (33 U.S.C. § 901-950) are mutually exclusive regimes providing compensation for work-related injuries suffered by different categories of maritime employees. The LHWCA excludes from its coverage a "master or member of a crew of any vessel." Instead, crew members are covered by the Jones Act. The term "master or member of a crew" is refinement of the term "seaman" in the Jones Act. As a result, the key requirement for Jones Act coverage appears in the LHWCA. The determination turns solely on the employee's connection to a vessel in navigation. It is not necessary that an employee aid in navigation or contribute to the transportation of the vessel in order to be "seaman" under the Jones Act, but the employee must be doing the ship's work by contributing to the function of the vessel or the accomplishment of its mission.

Three Types of Liability Employer of Seamen Three Types of Liability Jones Act Liability General Maritime Liability

Three Types of Liability Employer of Seamen Three Types of Liability Jones Act Liability General Maritime Liability Wages, Maintenance & Cure

Seamen “Wards of the Court” Ignorant - at the mercy of vessel owner Courts ensure fair treatment

Vessel Owner Liability Wages, Maintenance & Cure Owner is liable for WM&C Injury on the job Illness while employed Liable if injury or illness manifests itself during employment period

Wages, Maintenance & Cure If injury or illness manifests itself during employment period Injury Illness Toothache Appendicitis Colon cancer Pregnancy Heart condition

Vessel Owner Liability Wages What crewmember would have earned Maintenance Payments until maximum medical improvement Cure Medical expenses until maximum medical improvement

Vessel Owner Liability Maximum Medical Improvement Broken Arm Toothache Appendicitis Colon cancer Pregnancy Heart condition

Vessel Owner Liability Maintenance Obligation Food & Lodging Safe, clean lodging Not Hyatt Regency Not YMCA Meals $45 to $65+ per day

Employer Liability USL&H Insurance Required Federal criminal penalties Corporate officers subject to penalties Substantial financial risks if no coverage

Employer Liability USL&H Insurance Required If no insurance, employee can seek: Benefits prescribed by Act or Civil damages An employer who fails to secure the payment of compensation under the Act through an insurance carrier or to obtain authorization to be self-insured may face criminal prosecution and be subject to imprisonment and/or fines. If the employer is a corporation, the president, secretary and treasurer can be prosecuted individually and may be personally and severally liable for compensation and other benefits. If the employer is not insured, an injured employee also may elect to either claim compensation under the Act or sue for damages for his/her injury under general tort law. In such a lawsuit, the employer may not rely on the customary tort defenses that the employee is prevented from recovery by (1) his/her own contribution to the cause of the injury or (2) his/her own negligence or wrong-doing.

Civil Damages Employee sues employer Employer has no defenses No comparative-fault No pre-existing-injury Employer liable for proven damages

M/V Sahara Vessel owner paid millions Convert to luxury floating hotel Lake Union Employee – bookkeeper and worker No USL&H insurance

M/V Sahara Employee drowned Estate filed civil lawsuit Trial No dependent children No financial support of parents

M/V Sahara Jury awarded $4 million Employer lost vessel USL&H insurance Death benefit less than $10K Insurance cost $10k - $15K

Tabingo v. American Triumph LLC and American Seafoods Company, LLC New Case Alert Tabingo v. American Triumph LLC and American Seafoods Company, LLC Employee sues employer on claims including a general maritime unseaworthiness claim in Washington State Court Lever used to operate a hatch on deck broke, causing a severe hand injury – amputation of two fingers Lever had allegedly been broken for two years prior to incident Why are we in state court? State courts are of general jurisdiction unless statutorily or constitutionally limited. “Saving-to-Suitors” Clause. Article III, Section 2 of the U.S. constitution grants original jurisdiction over maritime cases to federal courts. ... Federal law introduced a saving to suitors clause in order to allow a party to pursue a remedy in a state court for a maritime claim when entitled to such remedy.

Tabingo v. American Triumph LLC and American Seafoods Company, LLC Plaintiff brought claims for Jones Act negligence, Maintenance and Cure, and Unseaworthiness Question: Can the Plaintiff recover punitive damages? Fifth Circuit said “no” in McBride v. Estis Well Service, LLC, 768 F.3d 382 (5th Cir. 2014) due to perceived conflict with the Jones Act Supreme Court silent

Tabingo v. American Triumph LLC and American Seafoods Company, LLC Washington State Supreme Court holds: YES: Punitive damages are available for reckless or malicious behavior Unseaworthiness claims predate the Jones Act Jones Act meant to expand the rights of seaman as wards of the court. Jones Act does not explicitly limit recovery for punitive damages to injured (as opposed to dead) seamen. U. S. Supreme Court has allowed punitive for maintenance and cure violations NOTE: this is the law of the land in WA now. Expect injured seamen to bring state court claims. Only applies in WA courts, not binding on Federal courts or other states, but I would expect the 9th Circuit to follow suit.

Maritime Safety Day 2017