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            MARK C. MANNING, P.C.

 

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Newsletter for the Alaska
Maritime Community
Number 3

OSHA DEVELOPMENTS

The past generation has seen much litigation over the extent to which OSHA work-place safety regulations apply to the work of seamen aboard ship. OSHA has taken the position that operations of most uninspected vessels in territorial waters are within its jurisdiction, excepting only conditions actually regulated by the Coast Guard. The Coast Guard supports this position, as does the majority of court decisions.

One of those recent decisions arose from the injury to a crew member aboard a purse seiner docked in Hoonah. In the course of piling the seine on the mid-deck, the crew member was hit in the head by a purse ring. He was not wearing a hard hat at the time, and no hard hats had been provided by the employer. The court held that OSHA regulations are applicable to uninspected fishing vessels such as the purse seiner in territorial waters, that OSHA regulations required the wearing of hard hats during the deck work, and that the seamanís employer was negligent in failing to provide hard hats. The vessel owner was held liable to compensate the injured crewman. The court also applied a rule that provides that when an employee is injured because an employer has violated a safety statute, the employer is not entitled to a deduction for any causal contribution the employee may have made to the accident.

With the exception of fish processors, OSHA does not routinely perform work-site inspections on uninspected fishing vessels in Alaska. This reportedly reflects budgetary constraints and not any agency doubt about its jurisdiction.

To resolve the conflict among the lower courts over the applicability of OSHA regulations to working conditions of seamen on uninspected vessels, the U.S. Supreme Court decided in February to hear the appeal of a decision on the question by the federal appellate court that covers the central gulf states. The question should be settled within a few months.

In the meantime, Congress has averted what would have been burdensome new OSHA regulations, referred to as the "ergonomics program." The regulations were aimed at preventing carpal tunnel syndrome, tendonitis and other health problems associated with repetitive motion, awkward postures, contact stress and other on-the-job conditions. This program was enacted at the close of the Clinton administration. But in early March, Congress availed itself for the first time of recent legislation empowering it to repeal agency regulations of which it disapproves.

F/V LYNN

The LIN J capsized and sank in the Bering Sea in March, 1999, killing the five crew members aboard. Wrongful death claims were brought on behalf of the estates of all five. Four of the claims were settled. The claim on behalf of the captainís estate was contested, and ultimately denied by a court that applied the "primary duty doctrine."

This doctrine holds that a seaman may not recover from his employer for injuries caused by his own failure to perform a duty imposed on him by his employment. In this case, the court found that the capsize resulted from the compromise of vessel stability by ice build-up and by water in the lazarette. The court found further that the captain thwarted resolution of these problems by maintaining excessive speed and carrying too many crab pots. The court held that, since the captain had assumed responsibility for operating the vessel safely and was the sole person who could and should have taken corrective action, no claim could be brought on his estateís behalf for harm to him caused by his failure to do so.

MARITIME LIENS MAY ATTACH TO
"FEDERAL FISHING PERMITS"

Payments for goods and services rendered to a vessel are usually secured by a maritime lien that arises upon delivery of the goods or services to the vessel. Such liens cover the vessel and its equipment and appurtenances.

A federal appellate court recently affirmed a decision that a "federal fishing permit" was an appurtenance of a vessel and was subject to a lien on the vessel for wharfage services and repairs. The vessel ownerís contention that the permit was not a part of the vessel, but was, instead, the ownerís separate personal property was rejected.

The fishing permit at issue appears to have been issued by NOAA pursuant to 50 CFR Part 648, based on the vesselís fishing and permit history. This decision is not binding in Alaska, but may heavily influence any state or federal court in Alaska that considers the issue. The decisionís reasoning would not necessarily extend to IFQís and Alaska limited entry permits.

COLLECTION BLUES

Whether a season or a venture is profitable may depend upon adequate attention to contract preparation at the outset. Few ventures are at more risk and warrant more care in preparations than the sale of fisheries products abroad. A recent decision involving an Alaskan companyís sale of a container of refrigerated salmon roe exemplifies the need for adequate protection.

The Alaskan company apparently sold the roe to a company based in Moscow pursuant to a written contract, in terms CIF Moscow. The container was delivered to the designated carrier in Alaska. The contract documents provided that title to the roe was to pass from the Alaskan seller to the Russian purchaser upon the sellerís delivery of the roe to the carrier. As is commonly the case, the roe was not paid for at delivery, but was to have been paid for at a later time. The seller subsequently alleged that the shipment was lost in transit, never reached Moscow, and was never paid for.

The seller tried to recoup by suing the carrier for the carrierís alleged loss of the roe in transit, presumably because collection from the Russian purchaser was unlikely. A valid claim against the carrier for the loss of the roe could only be brought by the roeís owner. If title to the roe had passed to the purchaser upon delivery of the roe to the carrier, as the documents provided, the seller could have no valid claim against the carrier. To avoid this limitation, the seller asserted that the documents did not contain the true agreement. It offered its presidentís affidavit to the effect that the true agreement had been that the seller would ship its roe to the Russian company, which was to have the roe processed and sold. The Alaskan owner would be paid as money was earned from sales of its processed roe.

The court ruled that the contract documentís written terms were clear, unambiguous and complete. Applicable law barred consideration of evidence offered to try to prove that the parties had agreed to other terms and conditions in conflict with those in the contract documents. Consequently, the contractís terms concerning the passage of title were enforced, and the sellerís suit failed. The sellerís failure to prepare contract documents that truly reflected the deal cost it the opportunity to collect the considerable fair market value of a container of salmon roe from the carrier.

SEAMEN DO NOT ASSUME THE RISK OF AVOIDABLE WEATHER RISKS

A Bering Sea crab boat crewman was injured when a piece of ice the size of a bowling ball fell from the boom of a deck crane and landed on his hand. The vesselís captain had ordered the crewman to use the crane to move a sorting table. The job could have been done without the crane, however. Further, the ice on the crane could have been cleared before the crane was used.

The vessel owner tried to avoid liability by claiming that the accumulation of ice on a vessel was an obvious and well known risk of Bering Sea fishing that could not be controlled and had to be accepted, as with other weather-related phenomena like storms and heavy seas.

The court held that the vessel owner owed the crew a duty to take reasonable care to avoid hazards presented by the weather, just as with any other hazard. The seaman had raised a fair question whether reasonable care had been taken in this case, and was entitled to trial on the issue. The court also held that the hazard posed by the ice had rendered the crane "unseaworthy," meaning that the crane was not reasonably fit for its intended service. The seaman was entitled to recover compensation for injury caused by that unseaworthiness.

DUE PROCESS UNDONE

A recent decision of the Alaska Supreme Court illustrates the unwarranted damage government can inflict when it proceeds against a vessel without first giving the vessel owner an opportunity to be heard in opposition. The case involved the seizure of a fishing vessel for an alleged fishing violation. Seizure would not normally have occurred, but the assistant attorney general in charge of the case erroneously believed that the serious offence of "creek robbing" had occurred. Consequently, the State sought and obtained a seizure order from a court, without giving the vessel owner notice and the opportunity to participate in the hearing and explain the situation.

The State subsequently realized its error and that the offense was less serious than originally thought. But the case now had a life of its own. The State did not back off of the seizure and kept the vessel in custody. The owner could not afford to bond it out. A month later, a jury acquitted the vessel owner of the criminal charge that supported vessel forfeiture on criminal grounds.

In conflict with the usual practice of the Attorney Generalís office, the State persisted in endeavoring to forfeit the vessel on alternative quasi-criminal grounds. Eleven months after the original seizure, the State dismissed this remaining claim against the vessel. The vessel owner was awarded attorneyís fees, which suggests the trial court found the Stateís position had been unwarranted.

It appears that the State persisted in unwarranted action to try to justify its original seizure, rather than back off and admit the vessel should not have been seized. The unfortunate chain of events might never have transpired had the vessel owner been given the opportunity to participate in the forfeiture hearing and correct the Stateís misapprehensions before seizure.

DERELICT DISPOSAL

Disposal of derelict vessels seaward of the territorial sea base line is regulated by the Coast Guard and the Environmental Protection Agency. Disposal in Alaskan internal navigable waters is governed by the Coast Guard and the Alaska Department of Environmental Conservation. There does not appear to be a comprehensive publication or agency memorandum that explains the requisite disposal procedure in either case.

(The Corps of Engineers may also have jurisdiction, but tidewater disposal at depths approved by the Coast Guard will usually not be of interest to the Corps. The National Marine Fisheries Service also takes an interest in potential effects on fisheries and wants advance notice of disposal. But NMFS action in response to such notices is rare.)

Preparation for disposal should ordinarily begin with communication to the Coast Guard COTP. Seaward disposals must comply with EPA regulation 40 CFR ß229.3. Among other things, this regulation requires at least thirty days notice to the EPA Regional Administrator in Seattle describing the vessel, proposed disposal procedures, potential effects of the disposal on the marine environment, and evaluation of alternatives to ocean disposal. The disposal procedures should first have been developed with the COTP.

Disposal in internal waters is certainly feasible.  For example, depths exceeding one thousand feet are easily found in Prince William Sound.  But there is no state regulation analogous to the EPA regulation, and ADEC regulation staff states that the agency has no established informal procedure.  ADEC will probably be satisfied if it receives a timely communication in substantial conformity with procedures and information required by the EPA regulation.

The Coast Guard's final clearance will require that the vessel have been cleared of hazardous fluids, batteries, plastics that may drift free of the vessel during or after sinking, and other hazardous materials. Fuel tanks will probably be required to be flushed, not merely drained.

MAINTENANCE & CURE

 A seaman injured in the course of his employment is entitled to maintenance and cure from the vessel owner until he recovers to the extent reasonably possible. Maintenance is reimbursement of reasonable costs of room and board ashore. Cure is payment of medical and related expenses.

In a recent case, the vessel owner refused to pay for post-accident chiropractic care that was similar to chiropractic treatments the seaman had been obtaining prior to the accident. The basis of the refusal was simply that the owner doubted the accident necessitated the treatment, and was not persuaded by statements of the seaman's doctors to the contrary. In the absence of medical opinion supporting the owner's doubt, the court found the owner's position arbitrary, awarding cure and legal fees to the seaman.

In another recent case, an owner refused to reimburse an injured seaman's mortgage payments as maintenance. The owner insisted that, since the seaman's family lived in his house with him, the mortgage payments should be prorated among the inhabitants, with only the seaman's portion to be considered maintenance. The court held that no proration was warranted so long as the amount of the mortgage payment was within the range of reasonable housing costs for a single seaman.

Copies of court decisions available upon request 

  

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