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

2. Penalties for Lack of USL&H Coverage & Crewmember Illness

3. 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. § ) 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.

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

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

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

7. 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

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

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

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

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

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

13. 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.

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

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

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

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

18. 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.

19. 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

20. 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.

21. Maritime Safety Day
2017