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Posts: 31334Timestamp: Tue Jul 22, 08 11:23 PM
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| Post URL: Alaska Ranger's owners seek to limit liability in lawsuits
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NW Source: The legal maneuvering over the deadly sinking of the Alaska Ranger in the Bering Sea in March has begun, with the boat's owners asking a federal judge to limit — or remove entirely — any liability for the tragedy even as lawsuits from surviving crew members and families of the dead pile up.
So far, 21 personal-injury and two wrongful-death lawsuits have been filed in King County Superior Court, each accusing Seattle-based Fishing Company of Alaska — the owner of the 189-foot head-and-gut processor — of negligence and operating an unseaworthy vessel. Several other lawsuits are pending, including one to be filed by the family of the ship's captain, 66-year-old Eric Peter Jacobsen, of Lynnwood, one of five crewmen who died, according to maritime lawyer Steven Fury, who represents Jacobsen's widow.
Several other crewmen have already settled claims with the company, according to other area maritime lawyers.
There were 47 crew members aboard the ship when it foundered in rough weather 120 miles west of Dutch Harbor while heading out to fish for mackerel. The ship, according to testimony during U.S. Coast Guard hearings, lost power and steering as water poured into its engine room. The crew was forced to abandon ship in 35-degree water, snow squalls and rough seas.
Some made it into life rafts, but others floated in the dark in survival suits for hours as they awaited rescue. Coast Guard rescuers picked up 20 crew members, and the Ranger's sister ship, the Alaska Warrior, picked up 22.
Four of the five bodies were recovered.
In a filing in U.S. District Court in Seattle earlier last week, Fishing Company of Alaska (FCA) lawyers asked a federal judge to invoke an archaic piece of maritime law — once called a "vestige of time gone by" by a federal appellate judge — that limits the amount of money that can be sought by survivors or the families of the dead to the value of the Alaska Ranger and its cargo "at the end of voyage." In this case, the voyage ended on the bottom of the Bering Sea, and the boat is worth exactly nothing.
The lawsuit asks the court to find that FCA and its owners "are not liable to any extent for any loss or damage or for any claims whatsoever ... [and] liability be limited to zero in damages ... ."
"If they're successful, then all these seamen get is what lies in a thousand feet of water," said Seattle maritime attorney George Knowles, who represents eight surviving crewmen who have sued. "Under maritime law, they would be entitled to a share of the boat as it is, where it is."
Michael Barcott, the attorney representing Fishing Company of Alaska in the limitation action, said he could not comment specifically about the lawsuit. One advantage to it, he said, is that all of the claims filed against the company will now be consolidated in federal court, where settlement negotiations and settlements can occur.
"We are encouraging these seamen to talk to us," he said.
The Liability Limitation Act was enacted in 1851 and has not changed much since, although some federal judges have questioned its viability. The law has its roots in a time when the U.S. was still a seafaring nation and Congress was trying to encourage 19th-century businessmen to invest in the shipping industry by limiting the risk of sending sailing vessels to sea for months or years at a time.
The industry has changed, however, while the foundations of maritime law haven't. In a 1989 ruling by the 9th Circuit Court of Appeals, which includes Washington state, Judge Alex Kozinski wrote that the act "provides ship owners with a generous measure of protection not available to any other enterprise in our society."
To invoke the act, an owner must show that the vessel was seaworthy, properly manned and equipped, and that there was no prior knowledge of anything that might have contributed to the sinking — in other words, that it was unforeseeable and unpreventable.
To defeat it, a seaman or his survivors must prove the ship was unseaworthy or its owners negligent.
The maritime attorneys representing the crew members and survivors who have sued so far don't believe it will be a problem, given the sworn testimony of survivors offered at U.S. Coast Guard hearings into the sinking in April and May. Crew members have related tales of drunken officers and crew, power struggles, water below deck and leaking watertight doors.
A lawsuit filed by the son of Daniel Cook, the 58-year-old engineer who died after abandoning ship, alleges that the Alaska Ranger's hull leaked, that a life raft was frozen to its cradle and that Cook's survival suit leaked and didn't fit him.
A surviving seaman, Eric Haynes, accuses the company in his lawsuit of failing to provide "competent and sober officers." Haynes, in his Coast Guard testimony, said he had told the company earlier about drinking by the assistant engineer, who later admitted that he drank aboard the ship, but never while on watch.
Another advantage to the company offered by the limitation act is that it automatically gathers all of the lawsuits into one court, where they can be dismissed — if the company is exonerated — or settled if it is not.
If past sinkings are any indication, it's likely almost all of the lawsuits will be settled from the company's insurance. While Barcott, the company's lawyer, would not discuss the amount of insurance FCA holds, experienced maritime lawyers involved in the case believe it will be adequate.
That is not always the case, however. When the Arctic Rose sank in the Bering in 2001, killing all 15 crewmen, its owner had just $10 million in insurance to divide among the families.
All of the seamen's and survivors' lawsuits are brought under the Jones Act, which was written in 1920 and limits seamen's recoveries for injuries or death suffered on the high seas. A key element of the act allows seamen to recover actual damages and compensation for "pain and suffering" resulting from their injuries or before their death.
Most of the lawyers who have sued expect some large payouts — assuming their cases go forward.
Maritime lawyer James Beard, whose firm represents eight Alaska Ranger survivors and the family of one who died, says most have horrific stories of floating and freezing "in the middle of the sea in the middle of the night," waiting for rescue. Frostbite, hypothermia and post-traumatic stress are common, he said.
Source: Nwsource.com
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