No Next Generation of Seamen
Young Americans newly reporting aboard America's work boats often fare even worse than the imported Third World labor. Too many quit too soon as a result of the harsh working conditions and contribute to the labor shortage. Others without previous experience at sea never receive a proper job safety orientation and step aboard to fill a job opening with no idea of what they are getting into. Others make foolish mistakes at sea and find the sea is unforgiving and become permanently removed from the potential labor pool. This is an industry with a “sink or swim” attitude that all too often kills its young. Read of the demise of twenty two year old ordinary seaman Jamie Ashford on a routine crewboat trip offshore that highlights an almost total lack of responsibility and accountability by the boat owner and two licensed officers.
“Green” Deckhand Lost at Sea – The M/V Gulf Pride Case
[Source: NMA File A-174. Disclaimer: What follows is not legal advice. Rather, it is a synopsis of information
gleaned from reading this case. Each case must stand on its own merits. If you have a specific legal problem, you
should contact a lawyer for legal advice.]
If there is any "Gulf Pride" in the offshore oil industry in the Gulf of Mexico it is not symbolized by the now defunct company of that name or by the repossessed crewboat bearing the same name. In fact, the boat owner, the boat, its master and mate were just about as sorry as it gets out in the oil patch. This is the largely untold and unpublicized story of what many "limited-tonnage" mariners know happens in a hundred different forms but never sees in print. When a whiff of scandal does reach the newspapers, it never did in this case, it may appear in a 3½-inch release from the court announcing a decision. There are things that industry apologists don't want the general public to know about the marine industry. It is
the truth about things that happen to many of our mariners both in the Gulf of Mexico as well as on inland waters. The marine industry can be a very dangerous place for a newcomer, especially a young man with little or no experience around boats. It does not have to be a hostile environment, but it can still be a dangerous one because of the hazards of the oil industry. These hazards are coupled with the hazards of the sea and the carelessness of some
people who work in the industry. The lack of standards of care and ethics of some (but not all) boat owners, whether individual or corporate, creates a workplace that leaves a great deal to be desired. This is a true story brought to our attention by a brief news release of 3½ column inches in a local newspaper that never made front-page news. It announced a sizeable settlement made on behalf of two children of a mariner lost at sea. We extracted the story from the public record. The matter was brought to its conclusion by a team of
persistent attorneys(1) who exposed a pattern of carelessness and neglect that left a several insurance companies holding the bill for insuring a very questionable commercial boat operation. [(1)Hebert & Marceaux, 8026 Main St, Houma, LA 70360. (985) 876-4324]
To secure "justice" in the marine industry, a mariner – and often his family or heirs – must be prepared to fight for it. To do this, you will have to call on the services of an experienced admiralty attorney who has studied the law, is conversant with all sorts of federal regulations and agency policies, and above all, is able to combine considerable legal research in case law with some good detective work and credible expert witnesses to forge the tools necessary to prevail. The maritime industry in this part of the country brainwashes the public to look askance at trial lawyers much as they have been taught to look down on our “limited-tonnage” mariners as "boat trash." However, without conscientious trial lawyers, our mariners would never have their day in court. Statement of the Case [Editorial note: Most of the following was extracted and edited directly from the public record with legal citations
removed for ease of reading. Although some names are presented, others are not identified in the interest of privacy. Most of the events recited took place in Terrebonne Parish, LA, and in nearby offshore waters.]
Names and Positions
● Jamie Ashford - Deckhand lost at sea.
● Robert Jones(1) - Boat owner of M/V Gulf Pride
● Captain Gerald Smith(1) - Captain M/V Gulf Pride
● Phil Taylor(1) - Unlicensed Relief Captain, Mate of M/V Gulf Pride
["I guess the thing that is most shocking to my soul and heart is the fact that when they reached the Global Dock, the
Captain did not report Jamie missing, and in part his fault and part the fault of Mr. Jones because they were both aware
that he was missing and to wait some 12 to 13 hours before reporting it to the Coast Guard or the Sheriff's Office is
almost criminal in my mind. I think it could be considered a cause of Mr. Ashford's death." The Court.]
Trial court's decision.(1) The trial court held that Jamie Ashford died on the high seas, i.e., beyond territorial
waters. The court concluded that Jamie's survival time in the cold water was 5-6 hours. [(1)The trial took place in
the 32nd. Judicial District Court, Terrebonne Parish, LA. The decision was appealed to the First Circuit, Court of
Appeal, in Baton Rouge, LA, that rendered its decision on Mar. 28, 2002.]
The trial court found that the evidence proved that Gulf Pride was negligent for:
● failure to report a man overboard;
● failure to conduct a search and rescue for over twelve hours;
● failure to have a proper communication system between the Captain and crew working at night;
● failure to obtain knowledge of Jamie's whereabouts;
● failure to properly man the vessel for the job;
● failure to provide proper training and rules on the proper use of safety vests; and
● the bulwarks on the vessel were low.
The court found that Jamie was a young, "green" hand and, thus, was not contributorily negligent. The court held that the vessel was unseaworthy, but was not the proximate cause leading to Jamie's death. Jamie was 22 years old. He was a first-time deckhand assigned to the M/V Gulf Pride. He fell off the vessel on Jan. 27, 1997 while he was on night watch. Captain Gerald Smith testified that it was four hours after last seeing Jamie before he realized that he was no longer on the vessel. However, Jamie was conducting his night watch activities, as required by law. More egregious, however, was that once Captain Smith reached the dock in Houma, he did not call the Coast Guard. Rather, he called the vessel owner, Robert Jones. Nevertheless, neither man called the Coast Guard or law enforcement until the next day, well past any possible survival time. In fact, Captain Smith went to bed. The defendants stipulated (i.e., agreed) that Jamie was a Jones Act seaman. They acknowledge their duty to keep watch and to rescue that fell overboard. After Jamie's mother (i.e., the "plaintiff") presented her
case, defense counsel admitted to the court that it was reasonable to infer from the evidence that Jamie fell off the M/V Gulf Pride.
Another unfortunate human being who previously had fallen off a vessel spent 10 hours in the Gulf of Mexico, and survived, stated, "I was not ready to die." He was lucky, but Jamie was not as lucky and is dead. The defendants' actions in this case are horrible by any standards of humanity. Jamie's employment. Gulf Pride Marine Services, Inc. employed Jamie in Nov. 1996. He was 22 years old. He was assigned to the M/V Gulf Pride as a deckhand/seaman. On the date of the accident, a three-man crew manned the M/V Gulf Pride. The crew consisted of Captain Smith and Relief Captain/Mate Phil Taylor, and Jamie. The Gulf Pride is a 95-foot, 92 gross ton aluminum hull crewboat. Other than working for several months as a
roustabout/roughneck aboard a drilling rig, Jamie had little experience in the oilfield. Jamie's first experience working aboard vessels was with M/V Gulf Pride. He had only worked a couple of months on the vessel at the time of the accident and was a classic "green" hand. According to Captain Smith, it was his responsibility to train Jamie on the job. He admitted that a two to three month "first time" hitch was little experience. The Gulf Pride (the boat and the company) were formerly owned by Robert Jones. Gulf Pride is no longer in business because of extreme financial trouble.(1) This led to its failure to maintain the two vessels which comprised its fleet. Subsequent to the incident at issue, Sea Craft Corporation seized the M/V Gulf Pride because Gulf Pride did not pay for necessary repairs done to the vessel. Jones is a convicted felon for theft. [(1)For a colorful yet sordid history of Gulf Pride's "operations" see Matter of Gulf Pride Marine Service, Inc., 1997 WL 118394 (E.D.La. 1997).]
The M/V Gulf Pride was a vessel inspected by the United States Coast Guard. After inspecting the vessel, the Coast Guard issues a Certificate of Inspection with certain requirements for the vessel that must be followed along with vessel manning requirements. The certificate is then posted on the vessel in public view. The Coast Guard performs inspections and re-inspections annually. If events occur during the year that affects the vessel's seaworthiness, the Captain is required to notify the Coast Guard. The M/V Gulf Pride was supposed to have a minimum of a four-man crew when operating more than twelve hours per day. However, Jamie was part of only a three-man crew when he drowned. Captain Smith testified that with a three-man crew, the vessel was considered undermanned. He often complained to Jones about operating with only a three-man crew but Jones disregarded his complaints. Our Association is quick to add that the Coast Guard has a dismal record of enforcing its vessel manning requirements in the Eighth Coast Guard District.
Global Industries chartered the M/V Gulf Pride to provide crewboat services to its pipe laying barges working in the Gulf of Mexico. On Jan. 27, 1997, the M/V Gulf Pride made a trip to the Global pipe-laying barge GP-37, which was working on the outer continental shelf (OCS). It was located in the Gulf of Mexico, approximately four to five hours from Global's dock in Houma, LA. The lay barge was located southwards from Cat Island Pass, the entrance to Terrebonne Bay. Captain Smith, along with mate Taylor and Jamie traveled past territorial waters to reach the GP-37.
On the day of his disappearance, approximately thirty Global employees boarded the M/V Gulf Pride to ride home. Captain Smith began the return trip from the Global barge, heading to the Global dock in Houma where the passengers would disembark. The only crew members transporting the passengers while underway were Captain Smith and Jamie, as his watchman. Jamie, as the deckhand on watch, would be "about" the vessel in order to perform his duties. For example, Captain Smith testified that when they were underway, he ordered Jamie to check the engineroom every twenty minutes – but apparently never checked to determine that this was being done. After the Global passengers boarded the boat in the Gulf of Mexico, they went below deck to the cabin and there they went to sleep during the ride in.
The M/V Gulf Pride got underway between 6:30-7:00 p.m. in darkness. Captain Smith took a route that allowed them to travel through Cat Island Pass, up the Houma Navigational Canal, and ultimately to the Global dock in Houma. The seas that evening were estimated to have been between two and four feet, with occasional swells. The water temperature was 62 degrees. Hypothermia is a serious issue facing mariners who fall overboard in cold water – and one we believe the Coast Guard has neglected over the years as we reported to Congress in detail.(1)
Fortunately, Congress took some important steps to address the issues in 2010.(2) [(1)NMA Report #R-354, Rev. 4. (2)46 U.S. Code §3104 added.]
Upon getting underway, the vessel ran without using either its inside or deck lights. Jamie was in the pilothouse with Captain Smith and a passenger. Captain Smith allowed Jamie to pilot the vessel for approximately 15 minutes. Thereafter, Jamie left the pilothouse. Captain Smith claims Jamie's destination was not known exactly, a claim that relies upon Captain Smith's veracity. Mate Taylor was sleeping since it was his time off duty. The M/V Gulf Pride arrived at the Global dock at approximately 11:30 p.m. on Jan. 27, 1997. However, Jamie
was not on deck to throw the lines to tie up the vessel. Unless Jamie could walk on water, it soon became clear that he was not on the vessel. Ironically, Captain Smith testified that he had not seen Jamie for the last three and one half to four hours of the voyage. Captain Smith did not know Jamie's whereabouts for almost the entire trip. Modern seamanship practices and common sense dictate that the captain account for his crew on duty at regular intervals and use communication devices, such as walkie-talkies, to stay in contact with his deckhand on watch. All the vessel captains, including mate Taylor, testified that Captain Smith should have checked on Jamie's whereabouts every 15 to 30 minutes. Captain Smith was aware of his duty to care for and look out for the safety of his crew. Captain Smith was the master of the vessel at the time that Jamie drowned. Captain Smith's license is currently under suspension because he failed a Coast Guard drug screen unrelated to this incident. Mate Taylor was not
licensed because he pled guilty to negligent homicide in 1995 when he attempted to "perform surgery" on his girlfriend who overdosed. He has a 7th grade education.
Jones knew that he was required to have two licensed personnel as well as two deckhands on board the vessel but willfully operated the vessel without a proper crew! This was a pretty shabby operation. The boat. On Jan. 27, 1997, as well as several months before and seven months after, the M/V Gulf Pride had problems taking on unwanted water because of a cracked hull. Captain Smith knew this, but never reported the hull problem to the Coast Guard, as he was required to do. Captain Smith knew that once they got offshore, the boat had to be pumped out with the bilge pump. He knew this would be done at night, and would require the deckhand to check for oil discharge sheen by looking overboard because some oil commonly leaks into the bilge from the engines. Monitoring the bilge pump's flow was a continuous operation. Although a person inspecting the engineroom could tell if the bilge pump was pumping, he could not tell if it was pumping oil overboard except by visual inspection. To make this visual inspection, a person had to straddle the side of the vessel and lean over the
side to view the discharge opening approximately 2 feet above water level. However, the top of the bulwark railing presented a hazard because it was below knee height. Captain Smith knew the severe consequences of discharging oil in open water; and he knew that the "red hand" patch material was not stopping the leak in the vessel. In fact, the M/V Gulf Pride's Certificate of Inspection was temporarily suspended during a routine inspection in Aug. 1997, months after the accident, because of the cracks in the hull. Since Jones did not want his customers to know his boat leaked, he instructed Captain Smith to make no such notations in the billing logs. Although requested in court, Gulf Pride did not produce the official
Captain's logs or the engineroom logs for Jan. 27, 1997 or surrounding dates.
Our Association prodded the Coast Guard on many occasions to make necessary reforms in the way that entries are made in an inspected vessel’s logbook. When the Coast Guard refused to take any action, our Association took the matter to Congress. In 2010, Congress acted and amended the statute and required Official Logbooks on all inspected vessels.(1) [(1)46 U.S. Code §11304 added.] Part of Jamie's deckhand duties, although Gulf Pride never specifically trained him how to do it, was to check the bilge discharge while the pump was operating. Furthermore, no one ever told Jamie to wear a life vest or life jacket to perform this inspection or even to always wear it while on deck when the vessel was underway.
The last time anyone saw Jamie alive was between 15 and 60 minutes after departing the GP-37 lay barge.
Allegedly, Captain Smith did not know where Jamie was going when he left the wheelhouse. Of course, Captain Smith would never announce to his passengers that the vessel had problems taking on unwanted water! About thirty minutes after getting underway, a passenger saw Jamie down below looking for something in the storage compartment. At the time, Jamie had a life vest on. The item Jamie removed from the closet had a hose on it and appeared to be a pump. Another passenger saw Jamie on deck heading towards the side of the vessel.
Although Jones and the Coast Guard records dispute Smith’s testimony, Smith claims to have no idea when Jamie was last seen. At no time did Captain Smith attempt to backtrack and perform what is known as a Williamson Turn maneuver to search for Jamie. This could easily have been done since Captain Smith had tracked his route on LORAN. Once he reached the Global dock in Houma, Jamie was not onboard. Captain Smith and mate Taylor did, however, search the vessel. They found Jamie's clothes and wallet, and Taylor claimed that the wallet was empty. The Terrebonne Parish Sheriff's Office later returned Jamie's clothes to his mother.
Knowing that Jamie obviously was not on the vessel, Captain Smith refused to notify the Coast Guard. Rather, he called Jones from the Global yard. This was after the vessel docked in between 11:00 p.m. and 12:00 a.m. Jones instructed Captain Smith and mate Taylor to take no further action because allegedly he wanted them to wait until the morning to "see if Jamie would reappear." This was under the guise that Jones believed Jamie had left the vessel to go drinking in bars. Captain Smith and mate Taylor then went to bed. The next morning at
approximately 8:00 a.m. Captain Smith again spoke with Jones. Finally, on Jan. 28, 1997, at approximately 10:14 a.m., fourteen hours after leaving barge GP-37, Jones notified the Coast Guard in Grand Isle. Around 11:00 a.m. he notified the Terrebonne Parish Sheriff's Office. He told these agencies that Jamie was missing and that "he was last seen at the dock." Jones never ordered his crew to use the vessel and attempt a search. The Coast Guard dispatched a helicopter to cover the Gulf and notified the Terrebonne Parish Sheriff's Office.
According to the Coast Guard's official record, Jones called the Coast Guard. The Coast Guard report states that Jones told them a person was in the water off the vessel M/V Gulf Pride and was last seen at "Cat Island Pass" working on a light in a shop." The shop was the engineroom. Cat Island Pass is about ten miles offshore from the mainland at the entrance to Terrebonne Bay. Captain Smith testified that he did not know who told Jones this information. On the other hand, Jones, by deposition impeachment testimony, testified that the crew thought Jamie had fallen overboard. Jones did not report the claim to his insurer until June 17, 1999 (almost 5 months after the accident), and falsified certain information about the incident. The vessel had two logs: (1) The rough log that kept day-to-day events; and (2) a smooth log, sent to the customer, and called the billing log. Defendants never produced the rough logs and produced only portions of the billing logs. Captain Smith testified that the rough logs should contain information about the incident. Further, problems with the vessel were logged there as well. Neither Captain Smith nor Jones ever filed a Coast Guard Form 2692 Incident Report to report the accident. The Coast Guard requires that this form be completed along with a 2692-A Substance Abuse Form – but apparently never checked to determine that the casualty report was submitted. Also, the captain must take a substance abuse test within two hours after a serious incident such as loss of life occurs. This never happened.
A former Gulf Pride captain and close friend of mate Taylor's testified that during the early morning hours of Jan. 28, 1997, mate Taylor called him and was very excited and confused because he did not know what to do. Taylor told his friend that Jones wanted him and Captain Smith to lie by telling the authorities that they saw Jamie leaving the vessel after it arrived in port. Mate Taylor admits that he called his friend to tell him about "a missing deckhand" and that he was upset. Mate Taylor could never be located, until shortly before trial when Gulf
Pride found and produced him for a deposition. A "statement" was written by Gulf Pride's attorney at his office before the deposition and Taylor signed it.
The Global yard is a fenced-in yard with barbed wire and has a secured exit with a guard shack. It is well lighted with two or three security officers that checked out persons in and out of the yard. Security guards also patrolled the yard. A security guard noted in his logs that "word on the yard is that the deckhand was last seen near the sea buoy." No one at Global ever saw Jamie. No passenger who disembarked from the vessel saw Jamie at the dock. From the dock to the Global parking lot is about 829 feet, and means that everyone had to walk from the
dock to the parking lot. A Detective Lieutenant of the Terrebonne Parish Sheriff's Office investigated the case. He placed Jamie's name in the nationwide computer service used by law enforcement. On Mar. 10. 1997, a U.S. Customs Inspector from Galliano, Louisiana, called the detective. When the M/V Gulf Pride operates beyond territorial waters, a vessel
officer, by federal law and under oath, must certify who comprises the vessel's crew. She informed the detective that Captain Smith and mate Taylor listed Jamie as a crewmember aboard the vessel on at least three separate occasions after Jan. 27, 1997. By signing the declaration forms indicating that Jamie was part of the crew on those occasions, the captain and mate certified that the information was true and correct. After receiving this information, the detective immediately went to Jones' home in Chauvin, LA, which served
as Gulf Pride's office. The detective was very puzzled that Jamie was still being listed as a crewmember aboard the vessel. Jones was aware that the captain and mate continued to use Jamie's name as a crewmember. Jones told the detective that he was required to have four (4) people on the vessel. Neither the Terrebonne Parish detective nor an
independent detective have been able to find Jamie. In 1996, David Morin prepared a safety audit, by written questionnaire, on Gulf Pride for insurance purposes. He wanted to see what safety procedures that Gulf Pride had implemented. Jones told Morin that the vessel
maintained daily logs; after an accident they conducted drug testing; there was a formal written safety program; the crew on the vessel consisted of four members; and that they maintained two types of logs – master's rough log and Gulf Pride billing log.
Morin then made recommendations to Jones on reporting and investigating incidents and provided him with Coast Guard forms. Jones did not provide deckhand safety manuals to new employees, and Gulf Pride had no safety or training programs. Furthermore, the Coast Guard has no requirements for training entry-level (i.e., “green”) deckhands or “deckineers” who are expected to perform duties in the engineroom.(1) [(1)NMA Report #R-428, Rev. 1.]
Captain Smith testified that it was only mandatory at a dock or when a barge was at the stern bitts for crewmembers to wear a life vest. Captain Smith and mate Taylor testified that they never wore work or life vests while aboard the M/V Gulf Pride. Captain Smith quit Gulf Pride in May 1997 for fear of losing his license because of safety concerns aboard the
M/V Gulf Pride. He testified that Gulf Pride's paychecks were bad. In May 1997, by impeachment, Captain Smith admitted that the hull leak still existed.
Dr. Alan M. Steinman, a former Coast Guard surgeon general who is board certified in occupational and environmental medical matters, specialized in sea survival in cold weather, cold water exposure, hypothermia, and drowning. He is the author of numerous publications on sea survival and hypothermia and was a flight surgeon. He is a graduate of M.I.T., Stanford, the Mayo Clinic, and the University of Washington and has performed
experiments on sea survival and hypothermia. He was the Coast Guard's expert for twenty years in this field. As an expert witness, Dr. Steinman offered the opinion that Jamie had a sea survival time of 5 to 10 hours in seawater of the temperature at the time of the accident. The Coast Guard records estimated Jamie had sea survival time of 8 hours. Dr. Steinman explained the events Jamie went through psychologically and physiology immediately upon falling into the water and up to his death.
Falling overboard is common on vessels. In its practice of search and rescue, the Coast Guard's purpose is to rescue people in the water. A timely rescue is relevant to survival. A lifejacket will not prevent death unless a person is rescued in a timely manner. It is not unusual that a body lost at sea cannot be located. Dr. Steinman testified that people do not become unconscious immediately upon entering the water. Also, it is unusual to be sucked under the boat after falling overboard. The defendants' expert said that Jamie would have survived if
rescued within two hours and further testified that Jamie would not have become unconscious upon immediately hitting the water. Both experts testified that Jamie would have suffered a horrifying death. Finally, Gulf Pride did not do an investigation or take any statements concerning Jamie's drowning. Captain Smith and mate Taylor downplayed the leak on the vessel. They testified: "we patched it with red-hand.” On Aug. 15, 1997, upon routine inspection, the Coast Guard pulled the M/V Gulf Pride's Certificate of Inspection when they
found "a crack in the engineroom covered with red hand" and the life rings and life jackets were unsatisfactory.
Jamie's father testified that Jamie had little experience in the oilfield although he wanted to learn about it. In late Dec. 1996, Jamie was in good spirits. Jamie was working to buy a car and marry his fiancée. He was a fair swimmer.
The Building Blocks of This Case
For those mariners who believe the Coast Guard is out there on the water to protect your interests, think again. The Coast Guard does its best to police the waterways with its limited resources and does a good job in carrying out search and rescue work. The Coast Guard expects mariners to obey all laws and regulations, but does not always enforce all the laws uniformly. As you can see, they played a very minor role in this accident and many other cases
that affect mariners that must finally be resolved in court. This case relied upon a number of laws and regulations. However, it also relied just as heavily on judgments reached in previous cases that were applied to the specific circumstances of this case (i.e., case law). In this particular case, certain laws, regulations, policies, principles and precedents were skillfully blended together to identify the parties responsible for Jamie's death, to prove they were responsible, to arrive at a fair and just settlement for Jamie's mother and two children. Properly blending and presenting it at two trials and defending it against all challenges is up to the attorneys. In this case, the "blend" involved each of the following items to some degree or another. Do not consider any of these to be absolute pronouncements that you can consider as your "rights" as a mariner. You may find some of them helpful, where some may be of no value. However, based on this particular case, these are at least "talking points" if nothing more:
1. If a trial court makes an error of law, the appellate court (i.e., court of appeal) reviews the evidence de novo.(1)
[(1)Vocabulary: De novo = a second time; from scratch.]
2. The Jones Act states that the recovery of damages for death of seaman shall follow the laws for railway employees. [Railway employees are covered by the Federal Employers Liability Act of 1908 (FELA) as amended.]
3. Under FELA, a Jones Act seaman who dies has a negligence cause of action(1) for survival and wrongful death damages. [(1)Vocabulary: Cause of action = a claim in law and fact sufficient to demand judicial attention to enforce a right.]
4. If the death occurs on high seas, the Jones Act seaman has an additional claim for unseaworthiness for wrongful death under the Death on the High Seas Act (DOHSA).
5. The Outer Continental Shelf Lands Act (OCSLA) and its complimentary regulations may apply to vessels working on the water and regulates OCS activities in navigable waters. OCS activity includes any offshore activity associated with exploration or development of minerals.
6. Workplace safety is paramount on the outer continental shelf. Owners must conduct workplace activities free of hazards that can cause death or serious injury.
7. Adjacent state law may be adopted as Federal Law for damages and liability for breach of OCS violations.
8. The Code of Federal Regulations (CFR) may have the force and effect of law.
9. Coast Guard regulations may be used to establish a duty under Louisiana law and are adopted as federal OCS law.
10. Damages available under the Jones Act are survival and wrongful death. Survival damages under the Jones Act allow recovery for pre-death pain and suffering. These damages include compensation for the terror and fright a drowning victim experiences on the realization that he is about to lose his life.
11. Under the Jones Act, wrongful death damages allow recovery of only pecuniary damages.
Pecuniary damages are generally defined as loss of support; loss of services; loss of nurture, guidance, care, and instruction; loss inheritance; loss of earning capacity; and expenses. The Jones Act does not allow recovery for loss of society, loss of consortium, or punitive damages because they are non-pecuniary.
12. DOHSA provides only a wrongful death remedy. DOHSA follows the Jones Act and only allows recovery for pecuniary damages for wrongful death unseaworthiness claims. The courts have allowed the following damages: loss of support; loss of services of deceased; loss of nurture, guidance, care, and instruction; Loss of support; loss of services of deceased; loss of nurture, guidance, care, and instruction; Loss of
inheritance; and funeral expenses.
13. DOHSA and the Jones Act may allow recovery for loss of inheritance, which is different from future loss earnings.
14. Under the General Maritime Law, there are survival and wrongful death remedies. Damages for a General Maritime death claim in territorial waters may be loss of support, loss of services, funeral expenses, loss of nurture, loss of inheritance, and loss of fringe benefits.
15. A seaman may be allowed to supplement the Jones Act with Louisiana law because the Outer Continental Shelf Lands Act (OCSLA) federalizes state law. The seaman's beneficiaries have the benefit of recovering Louisiana damages for mental anguish, and loss of society, love, and companionship by applying Louisiana law as an additional damages remedy.
16. The Jones Act requires a reasonable man standard. The negligence of the employer must be judged as a reasonable employer under like circumstances; and the seaman's negligence must be judged according to a reasonable seaman under like circumstances.
17. Negligence on the part of the employer may arise in many ways, including failure to provide the seaman a safe place to work, existence of a dangerous condition aboard the vessel, or any other breach of the standard of care. Since the duty to provide the employee with a safe place to work allocates substantial risk of maritime employment to the employer, identical conduct is not demanded of the employer and employee. Different risks
are allocated to different parties. Central to the negligence inquiry is who had the duty to eliminate or minimize the risks.
18. Even under the ordinary standard of care required under the Jones Act, the slightest evidence meets the burden of proof.
19. The duty to provide a seaworthy vessel is a non-delegable duty on the vessel owner. Defective conditions on a ship or its appurtenances, and unqualified crews, all are situations that give rise to unseaworthiness. The test is one of reasonable fitness.
20. A vessel crew that is trained inadequately, not instructed properly, engages in unsafe work methods, or is furnished inadequate equipment can result in unseaworthiness.
21. Although a safer method may be proven, the causal chain is not broken if the evidence establishes that the seaman did not know of the safer method.
22. Failure to supply a vessel with a crew both adequate in number and competence in duties constitutes a classic case of unseaworthiness.
23. The rescue of a person in the water gives rise to an exceptional duty and accountability. The underlying character of the duty the employer owes a seaman overboard is such that, although it is less than a duty to rescue him, regardless of the cause for which he went overboard, it is a positive obligation to make a sincere attempt at rescue. "The duty is of such nature that ... once the evidence sustains the reasonable possibility of rescue, ample or narrow, according to the circumstances, total disregard of the duty, refusal to make even a try imposes liability."
24. The maritime rescue doctrine provides that where a seaman "has apparently fallen overboard, but his presence or location in the water is not readily discernable from the ship, the ship's officers are required to both effect a search of the area traversed by the ship and to rescue the seaman, so long as it is reasonably possible that the seaman remains alive in the water."
25. The absence of a crew member cannot be disregarded with impunity. Certain knowledge that a seaman is missing is not a prerequisite to the duty of search and rescue. The maritime rescue doctrine is based on the law of negligence, and like other aspects of this law, responsibility is tested by the standard of reasonable care.
26. If there is a reasonable possibility of rescue, the ship is under a duty to search and attempt a rescue when its officers know or, in the exercise of reasonable care, should have known a crewman is missing.
27. A Jones Act employer has a duty to supervise or instruct seamen as to safe methods by which they can carry out orders given to them.
28. A vessel captain has a duty to look out for the safety and care of his crew.
29. If a seaman is required to do his work in a dangerous manner where there are other and safer ways to do it, an officer may be negligent by having breached his duty to exercise reasonable care for the seaman's safety.
30. Whatever a ship owner might be permitted to do with respect to seasoned hands familiar with the peculiar hazards of the sea, it is plain that it may not be able to absolve itself of the obligation to furnish a seaworthy vessel and exercise prudent care for seamen by leaving this important decision (e.g., to wear or not to wear a life vest) up to an inexperienced person who had not yet begun to get his sea legs.
31. The mere issuance of a Certificate of Inspection by the U. S. Coast Guard does not mean that the vessel is seaworthy.
32. There may be no contributory negligence (on the part of the seaman) if the violation of a safety statute contributes to the seaman's injury.
33. If there is a violation of a statute, there may be a presumption of liability without regard to the seaman's negligence.
34. Unseaworthiness, like Jones Act negligence, can also be the per se result of a regulatory violation.
35. A vessel cannot begin to sail in an unseaworthy condition.
36. A captain must render assistance to seaman overboard.
37. A small passenger vessel may have to have a public address system. [46 CFR 184.610.]
38. The master and crew must be properly trained and trained for man overboard situations.
39. The failure to investigate a serious incident without substance abuse testing may violate federal statutes and regulations.
40. Adequate rails are needed on a vessel to prevent persons from falling overboard.
41. The standard in an unseaworthiness claim is "proximate cause in the traditional sense." Proximate cause means that:
a. The unseaworthiness played a substantial part in bringing about or actually causing the injury; and
b. The injury was either a direct result or a reasonably probable consequence of the unseaworthiness.
42. Courts have viewed the failure to make and keep appropriate entries in vessel logs with suspicion and disfavor.
Failure to make, critical entries is proof, by itself, of the facts omitted.
43. Absence of a controversial fact in a logbook may be significant in evaluating testimony.
44. Suppression and loss of the vessel logs, such as spoliation of evidence, may create a legitimate inference that if the true facts were entered in the logs they would be unfavorable to the vessel.
45. A vessel's logs must be preserved after an incident.
46. A captain should log all vessel accidents.
47. When a seaman deserts a vessel, a vessel officer should promptly make an entry of this fact in the vessel's logbook. The entry must be signed by the master and witnessed by the mate or a crewmember. There is a presumption of innocence from a charge of desertion in favor of the seaman if he leaves his clothes aboard the vessel when he left the ship. Leaving his clothes and possessions aboard his ship may be prima facie evidence that the seaman did not intend to desert his ship.