Perils of the Sea Defense

Crewmen injured on crab boats and other vessels are entitled to benefits under the Jones Act and the general maritime law. It is not necessary to prove fault in order to obtain benefits for medical coverage and maintenance. However, to recover compensation for pain and suffering and future lost wages, the injured seaman must prove negligence or that the vessel was unseaworthy.

A perils of the sea defense is often employed by insurance companies and vessel owners attempting to defeat a Jones Act seaman's claim. In reality, there are few instances where a peril of the sea defense is applicable. If proper precautions are taken for safety, weather and sea conditions can be safely confronted and navigated. Sometimes, this simply means staying in port or returning to port, choosing not to fish in heavy weather, or altering a course. A reasonably careful vessel operator can guard against even the most severe of wind, sea, and weather conditions. Even rogue waves should be anticipated and protected against by a careful vessel operator.

Hugh was injured while moving a crab sorting table on a crab fishing vessel in Alaska. The vessel had been working in freezing spray, and the vessel's crane was coated with two to three inches of ice. Throughout the day the crew of the crab boat had been chopping ice using baseball bats and crowbars. Despite the fact that the crane's boom was covered with ice, the captain of the vessel instructed the crew to use the crane to move the crab sorting table across the deck. In the process of moving the table, a volleyball size piece of ice fell off of the crane, smashing Hugh's hand against the sorting table. The captain of the vessel testified that he thought the crane was safe to use because the ice was attached to the crane boom like cement.

The vessel owner claimed the ice on the crane represented a "peril of the sea," for which they had no responsibility. The court rejected the vessel owner's argument that ice accumulation was a known risk of the fishing business. For a peril of the sea defense to be successful, the vessel owner and employer must establish that the accident was the result of an accident created by nature, which did not happen by the intervention of man, nor could have been prevented by reasonable careful operation of the vessel. The perils of the sea doctrine excuses the owner/operator of a vessel from liability for a seaman's injury when extraordinary natural conditions arise which are peculiar to the sea. The conditions must arise from an irresistible force or overwhelming power, which cannot be guarded against by human skill and prudence.

In Hugh's case, the court found the ice on the crane could have been prevented and controlled by use of ordinary skill and prudence. The captain simply could have ordered that the crane not be used, or alternatively ordered the ice to be cleared from the crane before it was used. By using reasonable care, Hugh's accident could have been prevented. The court ruled that in Hugh's case, either the crane was not reasonably safe for use by the crew, or that the crane failed under a normal and expected use, and therefore the vessel was either unseaworthy or the employer negligent. Hugh's case settled for a confidential amount.

Hugh has used his settlement funds to further his education, and he is now practicing medicine as certified physician's assistant. Hugh's case is reported at Gapay v. Q.& S. Enterprises, 200 AMC 1910 ( U.S. Dist. Ct. Alaska 2000).

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