Wrongful death cases, where a death occurs on or near the water, can involve multiple and overlapping laws, jurisdictions, and possible remedies. As is the case with maritime personal injury, a family's rights often depend upon whether the decedent was a seaman/fishermen, longshoreman/harborworker, passenger, business invitee or a maritime employee. This area of law is further complicated by the fact that rights and remedies can vary depending upon the location of the death.
Complicating matters still further, in death cases, the decedent obviously is not available to testify as to the facts of the case. In cases where a vessel sinks and all hands are lost, the lack of any witnesses can make proof of negligence or unseaworthiness challenging. A family facing the tragedy of losing a loved one needs to be represented by lawyers who practice in the area almost exclusively. The lawyers at Stacey & Jacobsen, LLP focus entirely on maritime matters, and especially on maritime personal injury and maritime wrongful death cases.
We discuss below the major laws that may apply following a wrongful death in a maritime matter. The same wrongful acts - negligence and unseaworthiness - which support a claim for maritime personal injury - also apply in the wrongful death case. Again, however, since there are so many variables, you should consult with the maritime lawyers at Stacey & Jacobsen, LLP LLP in order to obtain the best advice applicable to your situation.
I. Jones Act - Seamen - Fishermen: The death of a Jones Act seaman or fisherman involves many of the same issues as a personal injury. The same types of claims and types of damages apply to death cases as personal injury cases. Of course, the amount of damages obviously is different but the same general legal issues are involved.
The lawyers at Stacey & Jacobsen, LLP have been involved in almost all of the fish boat sinking cases over the last 20 years, including ARCTIC ROSE, GALAXY, AMBER DAWN, PACESETTER, NESIKA, PACIFIC APOLLO, LIN J, VESTFJORD and others. In addition, we have been the lawyers for perhaps 50 other cases involving the deaths of seamen and fishermen. We have represented the wives, husbands, children, parents, brothers and sisters of deceased Jones Act seamen. These are always difficult times for the families and we strive to be sensitive to all the individual concerns of the surviving loved ones.
We outline below some of the issues, claims, and money damages which arise in a seaman's or fisherman's death case.
A. Law of seamen/fishermen. There is no Worker's Comp. benefits or laws for an deceased seaman or fisherman. Rather, the law which governs deaths and personal injuries to seamen and fishermen is known as the Jones Act and general maritime law.
B. Jones Act. Generally speaking, the Jones Act allows the seaman to bring a claim against his/her employer for the negligence which caused the death.
1. Examples of negligence:
(a). Failure to provide safe equipment;
(b). Failure to maintain the vessel and equipment;
(c). Failure to hire a competent captain or crew;
(d). Failure to provide a safe place to work;
(e). Working in too heavy weather;
(f). Assigning inexperience crew to run equipment;
(g). Failure to follow safety rules;
(h). Ordering a seaman or fisherman to work excessive hours;
(i). Failure to provide prompt or adequate medical treatment;
(j). Failure to put guards on machinery;
(k). Failure to follow "lock out, tag out" procedures;
(l). Having a vessel undermanned or understaffed;
(m). Having crew do repetitive movements with hands which
causes carpel tunnel or tendinitis;
(n). Having obstacles in pathways;
(o). Not maintaining or repairing deck boards;
(p). Not having the right equipment on board to do the job;
(q). Failure to provide appropriate clothing or gear;
(r). Failure to properly train the crew.
2. Representative case: A couple of years ago, we represented a young family after a man went down on a crabber. In fact, the entire vessel sank without a mayday and there were no witnesses. What happened? How did the vessel sink? The insurance company immediately claimed that it must have been a "rogue wave" or an "act of God" and that they were not responsible. By obtaining all the shoreside maintenance records, and after interviewing prior engineers on the boat, we were able to show that vessel had trouble with valves used to flood the tanks. And, we learned that the high and low water alarms were having maintenance problems. Although nobody could prove for absolute certain what caused the sinking, we were able to show that the vessel had prior problems which could have likely caused the sudden, catastrophic failures necessary to sink a vessel so quickly. We were able to obtain a very good settlement for this man's family.
C. General maritime law and Unseaworthiness. In addition to the Jones Act, the families of a deceased seaman or fisherman can also bring claims for "unseaworthiness." Basically, if the vessel or its equipment is not "fit" or if the boat or her equipment is defective in some way, then the vessel would be unseaworthy.
1. Examples of Unseaworthiness:
(a). Equipment that failed under use;
(b). Broken planks or deck boards;
(c). Hydraulic fluid or oil on deck;
(d). Insufficient crew;
(e). Defective hull;
(f). Unreasonably slippery decks;
(g). Obstructions on deck;
(h). Tripping hazards;
(i). Defective or insufficient tools;
(j). Stairs being too steep or not having hand rails;
(k). Not having adequate lifesaving equipment on board;
(l). Dangerous machinery not being guarded.
D. Money Damages/Compensation for personal injures.
If the negligence of the seaman's employer or his fellow employees causes the death of the seaman, or if the "unseaworthiness" of the boat causes the death of a seaman, then the seaman's family can recover money damages. There is no limit or cap on these damages. We would be pleased to answer all your questions about the amount of money you may be able to receive following your injury. We offer a free initial consultation. Call our toll fee number 1-877-DECKLAW (332-5529) and speak to one of our experienced attorneys.
By way of a general outline, the following is a list of damages that may be recovered in a Jones Act (seaman, fisherman) case:
- loss of the financial support that the seaman would have provided his family; this would include the value of the home, living expenses, schools, cars, etc.
- the value of the loss of the services the seaman would have provided the family; this would include the value of the repairs to the home, fixing up the cars, fixing the roof, etc.
- the value of the care, nurture and guidance that the seaman would have provided his family; this would include the value of teaching a son to fish, or the advice a dad may give to a son about life in general.
- the loss of inheritance that the deceased seaman would have been expected to leave his family;
- pre-death pain and suffering;
There are, unfortunately, several lawyers out there who will "guarantee" a result. There are no guarantees in the legal business. But, what we can do is bring our many years of experience to the table in our evaluation of cases. Our lawyers are not only experienced on deck of vessels, we are experienced in the courtroom. Before going to law school, most of our lawyers were involved in commercial fishing or seagoing work. Our lawyers go back as far as 1982 in the maritime practice of law.
E. Jury trial or Judge trial; State Court or Federal Court.
As we mentioned above, the seaman and fisherman have many favorable laws that help them after an injury or death. For instance, the seaman and his family has the exclusive right to demand a jury, if he/she wants a jury to decide the case. The employer or shipowner can not demand a jury. Sometimes, we would rather have a judge decide a case. There are many reasons for this, but some cases are better off in front of a judge rather than a jury.
Also, the seaman and fisherman's family can choice to have their case tried in State Court or Federal Court. Again, there are sometimes facts in a case that dictate one choice or another. For instance, in State Court in Alaska, the winning party may collect a percentage of attorney's fees. In other words, the losing party can be ordered to pay a percentage of the winning party's attorney's fee. In a case of strong liability, filing in Alaska State Court can add to the damages that the insurance company must pay.
F. Insurance companies.
Most cases which involve a death to a seaman or fisherman also involve the boat owner's insurance company which will pay for the damages following an injury. The insurance companies almost always immediately appoint an "insurance adjuster" or lawyer to handle a death case. These people are skilled at their job - which is to protect the insurance company. Most often, insurance adjusters do an initial investigation as to how the accident happened. They will take statements from witnesses, if there are any. They will also handle any medical bills or funeral arrangements. Their job is to take steps to minimize the amounts that the insurance company will have to pay. Insurance adjusters and insurance lawyers are not your friend.
We know how insurance companies operate and how they think. We have been dealing with the maritime insurance companies for nearly 25 years. Insurance companies are motivated by only one thing - saving money. You should be represented in order to get what is coming to you.
II. Death On The High Seas Act (DOHSA): The Death On The High Seas Act applies when a death occurs beyond a "marine league" (approx. 3 miles) from shore of the United States. Following such a death, certain listed beneficiaries may have a right to recover money damages.
- Listed Beneficiaries: DOSHA lists beneficiaries - spouse, children, parents and other "dependent relative."
Children. Children can be adopted or natural children. In some states, depending upon the specific state law, children who were dependent - even if not adopted, have a right to recover.
Spouse. The definition of spouse also depends upon the specific state law where the decedent resided. Most often, however, live-together couples are not considered married.
Dependent Relative. Children, spouses, parents do not need to prove dependency. Other relatives must prove dependency; for instance, brothers and sisters.
- Personal Representative: A personal representative of the decedent's estate is appointed in the probate court. The personal representative of the decedent has the right to bring the claims on behalf of all the beneficiaries. In other words, the children, spouse, parents and "dependent relatives" can not bring their own claims. Only the personal representative can bring all claims on their behalf. Also, the personal representative has exclusive power to decide how the case should be run - including whether to accept any settlement or go to trial.
- What Damages Can Be Recovered Under DOSHA? The listed beneficiaries can recover, in basic terms, four categories of monetary damages:
(a). Loss Of Support. The beneficiaries may recover the amount of money equal to the anticipated financial contributions the decedent would have provided to those listed beneficiaries.
(b). Loss of Services. The beneficiaries can also recover the monetary value of the services the decedent would have provided. For instance, the value of fixing the car, painting the house, yardwork - these services can be compensated.
(c). Care, Nurture, Guidance. The beneficiaries/children may also recover the monetary value of the care and guidance the decedent would have provided. For instance, the value of the guidance a father would provide to his son regarding his first car, throwing a baseball, school - may be recoverable.
(d). Loss of Inheritance. If the beneficiaries can show that the decedent would have probably left them some assets or money, then the beneficiaries may be able to recover for this loss.
(e). Unfortunately, there can be no recovery for loss of love and affection or loss of society for a non-seaman who dies on the high seas. Only monetary damages are recoverable under DOSHA.
Call us at 877.DECKLAW (877.332.5529) or contact us online today.