A Challenge to Young Lawyers Practicing Maritime Law (Trial News, November 2022)
The maritime law is fashioned mostly by stare decisis – case law. I’ve spent my 40-year career trying to shape that law in favor of seamen.
Found: A commonly overlooked element of damages in seamen’s injury claims (Trial News, June 2022)
It is beyond question that the value of board and lodging furnished on board ship to fishermen while engaged in the vessel’s fishing operations is …
Setting Rates Of Maintenance: Should ‘Reasonableness’ Be Determined By Comparing A Seaman’s Mortgage To Rents In The Area, Or To Other Mortgages? (Trial News, January 2022)
Several years ago on these pages the question was asked: “When Setting Rates of Maintenance for Seamen with a House and Family, Should the Entire Mortgage Payment be Taken into Account?”
BOAT OWNERS THINK THEY CAN CHEAT EMPLOYEES OUT OF SMALL AMOUNTS OF WAGES WITH IMPUNITY (Trial News, December 2021)
(This is a true story. Names have been changed for obvious reasons.) It irritates me that so many vessel owners think they can get away with cheating their employees on small amounts of wages.
Are Seamen Entitled to Maintenance While in Jail? (Trial News, September 2021)
It is generally assumed that seamen are not entitled to be paid maintenance when they get thrown in jail. This article suggests that this is not, and should not always be, the rule.
CERTIORARI DENIED . . . DOWN IN FLAMES AFTER SEVEN YEARS (Trial News, January 2021)
There are no federal law penalties for cheating commercial fishermen on their wages. I’ve devoted much of my 38-year career attempting to correct this inequity.
A Proposal (Trial News, November 2020)
I have a problem with putting a price on emotional distress and pain and suffering even though I’ve represented injured plaintiffs for my entire career. By contrast, I am very comfortable putting a price on bad behavior in the form of punitive damages, when punitive damages are available.
Seaman On U.S.-Flagged Vessel Forced To Arbitrate Jones Act Claim Because Not A U.S. Citizen (Trial News, June 2020)
Arbitration clauses in employment contracts are increasingly being enforced by the courts, eroding the rights of workers, including seamen, to a jury trial. Yacouba Diarra is a citizen of Mali in West Africa who is in the U.S. on a green card.
“No Fish—No Pay” Practices Violate Fair Labor Standards Act (Trial News, February 2020)
“John, I need your help on a maritime case.” It was Patrick Pleas on the other end of the phone call, a legal aid lawyer from Northwest Justice Project in Wenatchee.
Trial of a Maritime Case in Idaho (Trial News Dec. 2019)
The case should have settled with a phone call. I didn’t know at the time that only $1,900 was at issue in a wage claim for a commercial fisherman.
The Fact of Surveillance Discoverable Before a Plaintiff’s Deposition (May 2019)
Many years ago in these pages the question was asked: “Are Surveillance Films Discoverable?” (Trial News July/Aug. 2000). The majority position of course was and is ‘yes’, but only after the plaintiff has been pinned down at deposition about what activities the plaintiff is or is not capable of.
Sailing the Seas of Maritime Law (in 35 years of practice) (Trial News, July/August 2017)
After 12 years in the merchant marine – while going to school between ships – I changed careers in 1982, switching from merchant seaman to lawyer. I’ve represented all types of seamen in wage and injury claims ever since.
Are Unearned Wages and Maintenance Payable Beyond Maximum Cure? (Trial News, July/August 2014)
Maintenance and cure (including unearned wages) is payable only to the point of maximum cure. Farrell v. United States, 336 U.S. 511 (1949) That’s black-letter law, right? Maybe not.
Don’t concede the first and last days of the maintenance obligation (Trial News, October 2014)
Some insurance adjusters don’t start paying maintenance to injured seamen until the day after the seaman gets off the vessel, claiming that the seaman was paid wages for that day, as well as free room and board. Similarly, maintenance sometimes is not paid for the day the injured seamen goes back to work, with the same rationale — the seaman gets wages, room and board for that day and thus is not entitled to maintenance.
Is Employment of Fishermen ‘At Will’ or is Just Cause Required for Discharge (Trial News, April 2014)
Fishermen are notorious liars — from the size and quantity of fish caught to what was promised in payment for catching those fish. That’s part of the reason Congress passed 46 U.S.C. 10601 in 1988.
When Setting Rates of Maintenance for seamen with a House and Family, Should the Entire Mortgage Payment be Taken into Account? (Trial News, April 2014)
Cases where the amount of daily maintenance is at issue traditionally have involved unmarried seamen — often itinerant — living in a cheap apartment or a flophouse hotel, usually near the docks or the airport. What about seamen who actually have a life on shore, including a family and a house with a mortgage?
Icicle Seafoods using Alaska Workers’ Compensation to Cheat Processors out of Maintenance and Cure (Trial News, October 2013)
Injury benefits under the Jones Act and the general maritime law, and under state-based systems of workers’ compensation, are mutually exclusive for the most part. There are a few exceptions, however.
Shipowners Can No Longer Escape their Maintenance and Cure Obligation Simply by Purchasing a Contrary Medical Opinion (Trial News, July/August 2013)
Trial courts have been hopelessly divided over how–or whether–to apply the summary judgment standard of Rule 56 to motions by injured seamen to reinstate maintenance and cure benefits after being cut off by their employer. The Washington Supreme Court has now provided guidance.
Shipowner Liable for Unknown Illnesses that Manifest After Seaman has Left the Service of the Ship (Trial News, May 2013)
During better than 30 years of practicing maritime law, this practitioner has advised seamen that their entitlement to maintenance and cure depended upon whether a need for medical attention “manifested” while they were in the employ of the vessel owner. This was true even for pre-existing illness or injury, as long as the seaman did not intentionally conceal the prior ailment from the vessel owner.
Are Punitive Damages Available in Wage Claims for Fishermen? (Trial News, December 2012)
Unlike blue water seamen on foreign voyages, fishermen and processors have no remedy under federal maritime law that includes wage penalties. 46 U.S.C. sec. 10313(g) (daily double wage penalty does not apply to fishing vessels). Some courts have borrowed from state law wage penalty statutes to fill in this gap in the maritime law.
Vessel Owners have Obligation to Authorize Medical Treatment in Advance…Maybe (Trial News, September 2012)
I called the insurance adjuster. “My client got hurt while working for your insured.
Failure to Report Injuries Within Seven Days Not Fatal To Maritime Claims (Trial News, April 2012)
In contracts of employment for fishermen and processors, vessel owners typically include language that requires employees to report injuries immediately. Many contracts go on to state that failure to report injuries within seven days will result in denial of the claim.
Frequently Overlooked Aspects of Maintenance and Cure (Revised 2012)
Most fishing companies put a rate of maintenance, paid to seamen in case of injury, in the employment contract — typically $20-$30/day. Courts will not necesarilly enforce these rates of maintenacne, as a matter of law, if the injured seaman can provebasic living expenses in excess of the contractual per diem rate.
Don’t Be Fooled by the IRS Medical Mileage Deduction When Seamen Are Reimbursed for Travel to Medical Appointments (Trial News, October 2010)
A creative fad is afoot amongst marine insurance adjusters that reduces the compensation paid insured seamen who have to travel to medical appointments. For this year, 2010, some adjusters are paying only 16.5 cents per mile traveled, based upon the amount people are allowed to deduct on their tax returns for moving or for travel to medical treatment, rather than the 50 cents per mile paid to federal court witnesses and jurors, injured longshoremen and workers on land, and almost everybody else–as well as the amount of the IRS standard deduction for business travel.
Punitive Damages Now Available for Failure to Pay Maintenance and Cure (Trial News, October 2008)
The U.S. Supreme Court overruled the Ninth Circuit and several other federal circuit courts, holding that punitive damages may be awarded “for the willful and wanton disregard of the maintenance and cure obligation”. Atlantic Sounding v. Townsend , 557 U.S. ___, 129 S.Ct. 2561, 2009 AMC 1521 (2009).
Millions for Defense But Not One Dime for Tribute (Trial News March 2008)
From the time Jeff Gruver first walked into my office more than three years before, I figured his case was only worth about $25,000. Even though my new client claimed to have been savagely beaten aboard a fishing boat, he had a criminal record longer than my arm.
The Status of Maintenance (for seamen) and Child Support in Washington after Aguilera v. F/T Alaska Juris, 1008 A.M.C. 1845, 535 F.3d 1007 (9th Cir. 2008)
Earlier in these pages (Trial News, May 2008), this practitioner suggested that it was not proper to deduct $10/day in child support from an injured seaman who received only $20/day in maintenance to pay for all his living expenses. The Ninth Circuit disagreed, at least insofar as a child support order from Texas was concerned.
Looking for a Lawyer in the West Indies (Trial News, March 2003)
(This is a true story. Some names have been changed.) “My mother was seriously hurt on a cruise in the Caribbean last March.
Litigating In The Bilge (Trail News, March 1994)
Only a few days after 9 lives were lost when the Aleutian Enterprise sank, Arctic Alaska was still playing fast and loose with Coast Guard safety regulations aboard another boat in the Bering Sea. Working at the time in Florida, the plaintiff was contacted by Arctic Alaska to fill the position of chief mate aboard a crabber/processor, the Northern Enterprise.
Do Seamen and Fishermen Injured in the Service of the Ship Have a Right to Medical Care for Life? (Trial News, January 1994)
All maritime practitioners know that a seaman’s right to maintenance and cure only lasts until “maximum cure” — as good as the seaman is going to get following the injury or illness manifested while in the employ of the vessel, right? For maintenance, probably yes.