The tragic news of the DESTINATION sinking has barely left the front page news when we now must face the news about SCANDIES ROSE. Our firm represented the family of one lost on the DESTINATION and currently represents both survivors of SCANDIES ROSE. The attorneys at Stacey & Jacobsen, PLLC are also participating in the U.S. Coast Guard Marine Board of Investigation Hearings. Our attorneys are questioning experts in the fishing industry and safety industry to investigate and discern ways to prevent another tragedy at sea.
While each sinking involves tremendous and unique losses to each particular family, the legal proceedings follow a predictable pattern. We here try to provide some basic information to the families in hopes that this information will provide some comfort.
1. The “Jones Act” covers these fishermen/seamen. The Jones Act is a “fault-based” system, meaning that the deceased seaman’s beneficiaries must prove that the employer/shipowner was at fault for the sinking or that the vessel was “unseaworthy” in some manner. Absent such proof, there is no recovery for the deceased seaman’s family. A Jones Act employer has a duty to provide his seamen with a safe place to work. All seamen must be properly trained and supervised. Their equipment and vessel must be “fit for its intended purpose” in all respects. Vessels must have proper stability to meet the conditions they are operating in and must have proper safety equipment, including alarms. Crewmen must be trained and drilled in emergency drills to abandon ship.
2. We will work with the survivors to determine the likely cause of the sinking. Rumors abound at this time. For instance, we understand that some work was recently done on the starboard side of SCANDIES ROSE. The vessel rolled to starboard and flooding occurred. We will obtain all shipyard work records, related emails/correspondence, and determine whether there were any warnings or concerns following this work.
3. The insurance company for SCANDIES ROSE has appointed an insurance adjuster and already hired their lawyers. The lawyers will stay behind the scenes at first and send the adjuster to meet/contact the families. The adjuster will try to “assure” the families that the insurance company will take care of everyone. Of course, the insurance company and the adjuster are not friends and will be pursuing the interests of the insurance company (that is, to minimize the amounts paid). The adjuster will probably “offer” to pay for a memorial service and fly family members to a service.
4. A key question that needs to be answered immediately is “how much insurance is involved?” The adjuster (and the insurance company lawyers) are reluctant to disclose that information. The reason that this question is so important is that this disaster will have 7 claimants (2 survivors and 5 lost). Is there enough insurance to address these losses? We hope the answer is yes but the way we approach the case can depend upon the answer to this question. There was only $5m in the DESTINATION case (6 men lost), which was not nearly enough.
5. These maritime insurance policies are known as “wasting” policies. Every dollar spent on the 7 cases comes out of the total policy amount/limits. Therefore, the timing/manner by which the survivors and families present their claims is important if there is limited insurance.
6. As strange as it may sound, the insurance company lawyers will file a Federal Court case, called a Limitation of Liability case, within 6 months of the sinking. The insurance company will ask a Federal Court to declare that the insurance company owes nothing to the families. This court action will probably be filed in Seattle and will require the families of the decedents to file legal claims in that court case. In other words, the filing of this Limitation of Liability case will require the families to file legal papers in the federal case in order to protect the families’ interests.
7. The families should soon get a probate case started in order to get a Personal Representative appointed. The Personal Representative is in charge of the case and her/his decisions control all aspects of the case. A Death Certificate will need to be obtained. The Death Certificate can be obtained in Alaska or Seattle. The Alaska proceeding usually involves a public hearing and which can be arranged relatively quickly.
8. Did the decedent have life insurance? Again, a Death Certificate will be needed.
9. The Coast Guard will conduct and investigation. With two survivors, the investigation will perhaps proceed faster than the one in DESTINATION (which took over a year). However, these investigations never seem to go as quickly as we would like. Likewise, these investigations don’t seem to provide all the answers about the cause of the loss. We will work closely with the Coast Guard to assist them in their investigation.
We hope that this basic information will in some way empower the families with useful knowledge that may serve them as they go forward.