1. No category

ASSOCIATION
SINCE
Maritime
1896
Personal
Injury
How to Keep Your
Above Water
Law:
Head
Tuesday, November 7, 2000
8:30 AM - 12:30 PM
Hotel Captain Cook
Anchorage, Alaska
Sponsored by the Admiralty Law Section
of the Alaska Bar Association
I?0. BOX 100279 l Anchorage,
907-272-7469 l Fax 907-272-2932
l
Alaska 99510-0279
http://U’W~~r.alaskabar.or~
8:30 - 8:40 a.m.
Welcome
8s Introduction
SteveShamburek, Moderator
8:40 - 9:00 a.m.
Admiralty
101: A Brief
Key Issues in Admiralty
Steve Shamburek
9:00 - 10:00
Forum Shopping:
Mark Manning
Lanning Trueb
a.m.
State
Introduction
Cases
Court
to
or Federal
Court?
10:00
- lo:30
a.m.
No Fault Remedies
-- Which Applies?
Maintenance &6Cure, State Workers’ Comp &LHWCA
Danielle Ryman
Lanning Trueb
lo:30
- lo:45
a.m.
Break
lo:45
- 11:45 a.m.
11:45 a.m.-
12:30 p.m.
12:30
Recent Developments
Herbert Ray
Matt Claman
p.m.Qm
and Wrap Up
Panel
Adjourn
Matt Claman is owner of The Claman Law Firm in Anchorage, where his
practice emphasizes representing plaintiffs in maritime cases. Mr. Claman
received his J.D. from the University of Texas at Austin School of Law.
Mark Manning was admitted to the Alaska Bar in 198 1. His practice has been
largely devoted to admiralty and maritime issues and related state law issues
pertinent to vessel owners and operators, and to shore-side marine support
companies and property owners. Over the years, he has acted on behalf of most
members of the International
Group of P&I clubs, as well as foreign and
domestic marine insurers, boat builders, repairers and suppliers, vessel crew
members, lenders, harbor and dock owners, and cruise, freighter, fishing, tug
and pleasure vessel operators.
Mr. Manning received his J.D. from the
University of Utah School of Law.
Herbert H. Ray, Jr. is the managing shareholder of Keesal, Young & Logan’s
Anchorage office. He has practiced law in Alaska since 1988, and has
extensive maritime litigation experience.
Mr. Ray is a member of the Maritime
Law Association
and serves as the Alaska editor for American Maritime Cases.
Mr. Ray received his J.D. from the University of Oregon School of Law.
Danielle Ryman is a graduate of Gonzaga University School of Law, and is a
member of the Washington
and Alaska Bar Associations.
In 1997, she joined
the Seattle maritime defense firm LeGros, Buchanan & Paul, and subsequently
joined the Anchorage office. Earlier this year, Ms. Ryman joined the Anchorage
law firm Sisson & Knutson, where she continues her maritime defense practice
with an emphasis in seaman’s personal injury.
Steven J. Shamburek
Steven J. Shamburek
clerked with the District Court for
the District of Alaska for a few years, pawned his return ticket back East and
has been in private practice in Alaska for a number of years. He is a member
of the Local Admiralty
Rules Committee,
the Admiralty
Law Section of the
Alaska Bar Association,
and the Maritime Law Association of the United States.
He somehow obtained a law degree from the University of Virginia.
Lanning Trueb is a partner with the law firm Beard Stacey Trueb Jacobsen &
Stehle, LLP. All of Mr. Trueb’s practice focuses in representing
plaintiffs in
maritime law cases. Mr. Trueb received his J.D. from the University of
Montana Law School.
Admiralty
101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
l
Submitted by Steven J. Shamburek
Forum
Shopping
.. .. .. ... ... .. .. ... .. ... .. .. .. .. .. ... .. .. ... .. .. .. ... .. .. .. ... .. .. ... .. .. .. ... . .. . 9
Submitted by Mark Manning
l
State
l
Versus Federal Court:
Does Forum
Submitted by Lanning Trueb
Really
Matter?
. . . . . . . . . . . . . . . . . . . 15
Maintenance
88 Cure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
a
Submitted by Danielle Ryman
LHWCA, Alaska State Workers’ Compensation
and Seamen Benefits -. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Areas of Exclusive
and Mutual Jurisdiction
0
Submitted by Lanning Trueb
Recent
l
Recent
l
District
l
Developments
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Submitted by Bert Ray
Developments
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Submitted by Matt Claman
of Alaska
Admiralty
Information
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Provided by the U.S. Marshal’s Office -- District of Alaska
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Admiralty
Submitted
Maritime
Personal
10 1
by Steven J. Shamburek
Injury/CLE
#2000-014
1
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maritime
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2
ADMIRALTY 101
J. SNANBUREX
STEVEN
There are a handful of general rules and definitions
admiralty
law not subject
to many exceptions.
There
also some consistent
tendencies
and practices
in state
federal
courts.
The following
definitions
in
discussions
may assist
the participant
in following
substantive
presentations
later
in the program.
in
are
and
and
the
1.
A typical
civil
action is brought against an individual
or entity
in personam.
To foreclose
a maritime
lien,
an in
3
action must be brought and is directed
against property
rather
than against
an individual
or entity.
An in rem
action
must expressly
name the property
(F/V Minnow;
An in rem action can only be brought
Lamborghini;
shekels).
and maintained
in federal
district
court.
A maritime
lien
can only be foreclosed
in federal
court.
There is a
maritime
lien
for unseaworthiness
and for maintenance
and
cure but not for a claim under the Jones Act.
(Some states
contend
that
a state
can foreclose
a state
claim
for
or other
for
a
forfeiture
against
a vessel
prwe*y
The state proceeding
violation
of state law in state court.
cannot extinguish
a maritime
lien.)
2.
An
injured
person
must meet the definition
of a
maintain
a personal
injury
action
under the
There have been many pitched
disputes
over the
Jones Act.
status of a plaintiff
in an admiralty
case.
gtseamanIf to
in 28 U.S.C. section
3.
The 'Isaving to suitorsB1 provision
1333l allows an injured
seaman to bring an action in either
federal
court or state court.
If a Jones Act claim
is filed
in state court,
the defendant
is absolutely
precluded
from
removing the action to federal
court.
See 28 U.S.C. section
1445(a)
(Federal
Employers'
Liability
Act
provision
regarding
removal applies
to cases filed
by a seaman under
46 U.S.C.
section
688 of the Jones Act.)
The plaintiff
controls
the forum: the forum impacts the outcome.
1
Section
1333. Admiralty,
The district
courts
exclusive
of the courts
maritime
and prize
shall
have original
of the States,
of:
cases
jurisdiction,
(1) Any civil
case of admiralty
or maritime
jurisdiction,
saving to suitors
in all cases all other remedies to which
they are otherwise
entitled.
(2) Any prize
proceedings
for
Maritime
Personal
brought
into
the United
the condemnation of property
Injury/CLE
#2000-014
States
taken
3
and all
as prize.
4.
In federal
court,
if an injured
plaintiff
elects
to try
the case 'IIn Admiralty @Ito the court rather
than to a jury,
the plaintiff
controls
the decision.
A plaintiff
typically
cites
Rules 9(h) and 38(e) of the Federal
Rules of Civil
(There may be a right
of a defendant
in a
Procedure.
commercial
maritime
matter
to demand a jury
trial.)
In
state
court,
if a plaintiff
elects
to try the case to the
court rather
than to a jury,
the outcome'is
not clear.
The
state courts recently
have honored the plaintiff's
election.
case
authority
There
is
allowing
the
defendant
to
elect/demand
a jury trial.
The issue has been briefed
in a
dozen cases, but it has not yet gone to the Alaska Supreme
court.
Remember that a federal
court jury must be unanimous
whereas a state
court
jury
need only reach a verdict
by
agreement of ten of the twelve jurors.
5.
The federal
courts and state courts typically
address a
forum selection
provision
in a contract
differently.
This
issue is addressed in greater
detail
by other speakers.
6.
There
are typically
three
causes
of
action
in a
maritime
seaman's
personal
injury
complaint:
unseaworthiness,
Jones Act
(negligence)
and maintenance,
cure and unearned wages.
The three
causes of action
are
discussed
below.
There is a comprehensive
discussion
of
these causes of action
in Ribitzki
v,. Canmar Reading
t
Bates, Ltd. Partnershin,
111 F.3d 658 (gL1' Cir. 1997).
7.
The cause of action for unseaworthiness
is discussed
in
Brown v. State,
816 P.2d 1368 (Alaska 1981).
The Alaska
Supreme Court states:
The
doctrine
of
unseaworthiness,
like
maintenance
and cure,
arose
under the general
maritime
law, Cortes,
287 U.S. at 370-71, 53 S.Ct.
at 174, developing
in American admiralty
courts
from the late
nineteenth
century.
Mitchell
v.
Trawler
Racer, Inc.,
362 U.S. 539, 544, 80 S.Ct.
926, 929, 4 L.Ed.Zd 941 (1960).
Beginning in the
194os, the Supreme Court
significantly
expanded
the
shipowner's
duty
to
provide
a seaworthy
vessel,
such that
the availability
of actions
under this
doctrine
is an important
right
for
injured
sailors.
See G. Gilmore Ei C. Black, The
Law of Admiralty
IS 6-38 through
6-44(a)
(2d ed.
1975).
Shipowners are under an absolute
duty to
provide
a vessel and appurtenances
reasonably
fit
for their
intended
use.
Mitchell,
362 U.S. at
549-50,
80 S.Ct.
932-33;
see also
Morales
v.
Galveston,
370 U.S. 165, 169, 82 S.Ct. 1226, 1229,
8 L.Ed.2d
412
(1962);
Seas Shiopinq
Co. v.
Sieracki,
328 U.S. 85, 94-95, 66 S.Ct.
872, 877,
90 L.Ed. 1099 (1946) ("[T]he
liability
is neither
maritime
Personal
Injury/CLE
#2000-014
4
limited
by
conceptions
of
negligence
nor
contractual
in character.
It
is
a
form
of
absolute
duty owing to all within
the range of its
humanitarian
policy. I') (citations
omitted).
The
duty also is nondelegable.
Sieracki,
328 U.S. at
100, 66 S.Ct. at 880.
Id.
at 1372.
To be seaworthy,
a vessel,
its
crew and
operations
and procedures
must
be
appurtenances
and
reasonably
suited
for the purpose or use for which it was
intended.
Mitchell
v. Trawler
Racer,
Inc.,
362 U.S. 539,
550 (1960).
The owner's duty to furnish
a seaworthy ship is
absolute
and completely
independent
of the duty under the
Jones Act to exercise
reasonable
care.
&
at 549.
The
unseaworthy
condition
may only be transitory.
Id. at 550.
Liability
under the doctrine
of unseaworthiness
does not
rest
upon fault
or negligence.
The Supreme Court
in
Mitchell
found liability
for the temporary presence of slime
and fish
gurry
for
a distance
of 10 or 12 feet
on the
Id. at 540.
vessel's
rail.
8.
A cause of action
for violation
of the Jones Act at 46
U.S.C.
section
688 is one grounded
in negligence.
The
Alaska
Supreme Court
reaffirmed
the
doctrine
that
the
standard
of care owed by an employer to a seaman is higher
Brown v. State,
816
than the common-law standard
of care.
P.2d 1368, 1372 (Alaska 1991).
The court,
moreover,
need
degree
of
negligence
by the
find
only
the
slightest
defendants.
The Court states:
A Jones Act plaintiff
enjoys two significant
advantages
over the plaintiff
in a common-law
First,
the standard of care owed
negligence
case.
to
a sailor
is
higher
than
the
common-law
standard.
As Justice
Cardozo noted:
We do not read the [Jones Act] as expressing
the will
of Congress
that
only
the same
defaults
imposing liability
upon carriers
by
rail
shall
impose liability
upon carriers
by
water.
The conditions
at sea differ
widely
from those
on land,
and the diversity
of
conditions
breeds diversity
of duties.
This
court
has
said
that
"the
ancient
characterization
of
seamen as
'wards
of
admiralty'
is even more accurate
now than it
was former1y.l'
, . . Out of this relation
of
dependence and submission
there
emerges for
the stronger
party
a corresponding
standard
or obligation
of fostering
protection.
Cortes,
287 U.S at 377, 53 S.Ct. at 176.
Second,
the Jones Act plaintiff's
burden on the issue of
causation
has been described
as a "featherweight."
MarltIme
Personal
InjuryKLE
#2000-014
5
G. Gilmore
(2d
ed.
& C. Black,
That
1975).
The Law of Admiralty
burden
is
satisfied
§ 6-36
if
the
plaintiff
establishes
"that
employer
negligence
even the slightest,
in producing
played any part,
the injury
or death for which damages are sought."
Ferouson v. Moore-McCormack Lines,
Inc.,
352 U.S.
521,
523,
77 S.Ct.
457,
458,
1 L.Ed.2d
511
(1957);
Robin v. Wilson Brothers
Drillinq,
719 F.2d 96, 97
t n. 1 (5th Cir. 1983) (approving
jury instruction
to the effect
that
"negligence
is a legal
cause
[in a Jones Act case] if it played any part,
no
matter
how slight,
in bringing
about or actually
causing the injury
or damage").
In sum, the plaintiff
need only show that the negligence
was
a "producing
causeB1 of the injury
and that
it played the
slightest
part in producing
the injury.
&
at 1372.
The
burden on a plaintiff
to show causation
in a Jones Act claim
is "featherweight."
Id.;
Ferouson v. Moore-McCormack Lines,
Inc.,
352 U.S. 521, 523 (1957).
9.
A cause of action
for maintenance,
cure and unearned
wages is usually
the third
cause of action,
although
some
cases
only
involve
claims
for
maintenance
and cure.
Maintenance
is a per diem living
allowance paid so long as
the injured
seaman is outside
the hospital
and has not
Cure
involves
the
reached the point
of l@maximum cure."
payment of therapeutic,
medical,
and hospital
expenses not
otherwise
furnished
to the seaman until
the point of "maximum
This "ancient
cure."
duty" of a vessel and its operator
to
provide maintenance and cure to a seaman who becomes ill
or
is injured while in the service of the vessel arises from the
context
of the employment relationship
and not from any
negligence
or fault
of the employer or the unseaworthiness
of
the vessel.
Calmar S.S. Corn. v. Tavlor,
303 U.S. 525, 1938
A.M.C. 341 (1938);
Cartes v. Baltimore
Insular
Line,
Inc.,
287 U.S. 367, 371 (1932).
This duty is owed irrespective
of
negligence,
fault,
or unseaworthiness,
and is not subject
to
reduction
for comparative
negligence
of the seaman.
The
illness
does not
have
need to
causal
connection
any
whatsoever
to entitle
the seaman to maintenance
and cure.
Calmar, 303 U.S. at 527.
The cause of action
is at times
offhandedly
referred
to
as the
nautical
equivalent
of
workers'
compensation,
yet there
are many fundamental
and
critical
differences
between a maintenance
and cure claim
and a workers'
compensation claim.
10.
There are
endorsements:
a
few
basic
marine
insurance
provisions/
"Protection
and Indemnity
(P & I)"
- A typical
policy
protects
the vessel and vessel owner against claims by seamen
and third
parties
for injuries
occurring
on or torts
caused
by the vessel subject to exceptions
and limitations.
Maritime
Personal
InjuryKLE
112000-014
6
are
also
endorsements
There
Longshoremen's
and Harbor
Workers'
for
Marine
EaplOyer’S
Liability
claims,
Risks.
Liability
(GL), and for Pollution
%ull
the vessel
and
Machinery
owner against
for
United
Compensation
(MEL), for
(E C M)*' - A typical
policy
damage or loss of the vessel.
States
(USLLH)
General
protects
is regarded
as a legal
8mperson.812 The
11. A uvessel"
notion of a vessel as a person has been described as follows:
A ship
is
the most living
of
inanimate
things.
Servants sometimes say "she" of a clock,
but every one gives a gender to vessels.
And we
need not be surprised,
therefore,
to find a mode of
dealing which has shown such extraordinary
vitality
in the criminal
law applied with even more striking
thoroughness
in the Admiralty.
It
is only by
supposing
the ship to have been treated
as if
endowed with
personality,
that
the
arbitrary
seeming peculiarities
of the maritime
law can be
made intelligible,
and on that supposition
'they at
once become consistent
and logical.
O.W. Holmes, The Common Law, 26-27 (1881).
A vessel is a
person in the eyes of the law much like a corporation.
A
corporation
is able to sue and be sued.
A vessel can be
sued, however, but it is not capable of suing.
A corporation
can file
a petition
in bankruptcy,
but a vessel cannot file
a
petition.
The notion
of 3 vessel
z
person
animates
admiralty
practice
in America.
2
The statutory
definitions
of a "person"
do not include
a
vessel.
A l@person" is defined
in the United
States
Code to
include
"corporations,
companies,
associations,
firms,
partnerships,
societies,
and joint
stock companies,
as well
as
individuals."
Title
1 U.S.C. 5 1.
A 'Iperson" is defined in the
Bankruptcy
Code
to
include
"individual,
partnership,
and
corporation,
but does not include governmental unit.
. . .II Title
11 U.S.C. 0 lOl(41).
A "person" is defined in the Alaska Statutes
to
include
a
"corporation,
company,
partnership,
firm,
association,
organization,
business trust,
or society,
as well as
a natural
person."
AS 01.10.060.
3
The personification
of a vessel is discussed
in [Judge Alex
T.] Howard, "Personification
of the Vessel:
Fact or Fiction?,"
21
J.
Mar.
L.
& Corn. 319 (July
1990),
and in Walker,
"The
Personification
Of The Vessel
In United
States
Civil
In Rem
Actions And the International
Law Context,"
15 Tul. Mar. L.J. 177
(1991).
Maritime
Personal
Injury/CLE
#2000-014
7
JONES ACT
(Neuliuence)
Elements
Standard
Statutory
Violation
(Neslisence
Ordinarv
Case
(Neslisence
Standard1
of
Care
for defendant
(Plaintiff's
burden
to prove standard
and breach)
Employer
owes high
Per Se)-
Statute
sets
standard of care
(Brown in Alaska)
(Min. view-ordinary
standard of care)
standard:
Violation
breach
Standard of Care
for plaintiff
(Defendant's
burden
to prove
comparative
negligence)
Employee owes slight
standard of care
(Not mentioned
in Brown; derived
from federal
cases)
(Min. view-see above)
No
comparative
negligence
if breach
Burden of proof
regarding
causation
"FeatherweightI
(Brown in Alaska)
(Plaintiff's
burden)
Presumed
(Burden
shifts
to
defendant
to disprove
causation)
is
UNSEAWORTHINESS
(Strict
Liability)
Statutory
Violation
Elements
Ordinary
Standard of Care
(Plaintiff's
burden
to prove standard
and breach)
Reasonably suited for
the purpose
Absolute and independent
duty
Does not rest upon fault
or negligence
Statute
sets
standard:
Violation
is breach
Comparative
Negligence
N/A to a strict
cause of action
N/A to a
strict
liability
cause of action
Burden of proof
regarding
causation
Two Part:
1) Played a part in
bringing
about
injury
2) A direct
result
or
probable consequence
of unseaworthiness
(Plaintiff's
burden)
Maritime
Personal
InjuryKLE
Case
liability
1~2000-014
Not set
forth
in
case law
8
Forum
Submitted
Marltlme
Personal
Injury/CLE
Shopping
by Mark Manning
#2000-014
9
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Personal
InjuryKLE
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10
FORUMSHOPPING
Mark C. Manning
While 28 U.S.C. $1333 provides that the federal district courts shall have original jurisdiction
“exclusive of the courts of the States”of any civil caseof admiralty or maritime jurisdiction, subsection(1)
of that statute-the “Saving to Suitors Clause”- entitles parties to pursuemost admiralty and maritime>
personamclaims in statecourt. A few differencesbetweenfederaland statesubstantiveandprocedurallaw
commonly point strongly to a particular forum. Otherdifferencesmay be in play only on rareoccasions.but
could prove crucial in the right case. The following is a summary of some considerationsthat may bearon
the choice.
I. RULES OF CIVIL PROCEDURE.
Rule 3 (Alaska) and LR 3.2 (D. Alaska). Alaska superiorand district courtsare,of course,situated
throughoutthe state. While the U.S. District Court for the District of Alaska is headquarteredin Anchorage,
court may also be held in Ketchikan, Juneau,Nome and Fairbanks. 28 U.S.C. $81A. A federal action for
which venueis properin Alaska may be filed at any of theselocations,though the court may transferit for
managementpurposesand for trial.
Rule 26. The Alaska rules are,of course,modeledon the federalrules, so there is a high degreeof
consistency. Alaska andFederalRule 26 havebeenamendedin recentyearsto reflect certainreforms and,
when the District of Alaska’s Local Rule 26.2 is also taken into account,there is little differencethat may
offer a tactical advantage.
FederalRule 26(e)permits no discoveryprior to Rule 26(f) planning meeting. Alaska Rule 26(d)(l)
permits serviceof up to ten (10) interrogatoriesprior to the requiredplanning meeting. Since someparties
may try to buy time by avoiding a Rule 26(f) meeting, and since it might be advantageousto immediately
put a party to having to explain itself in writing underoath, a tactical advantagemay be found here.
It may also bethat the scopeof documentdiscovery is broaderunderAlaska Rule 26. For example,
it is not clearthat thefederal rule will permit suchreadyaccessto insurerfiles asdoesLanndonv. Chamoion,
752 P.2d 999 (Alaska 1988).
Rule 38, 47 & 48. The SeventhAmendment to the Constitution does not require trial by jury in
federaladmiralty jurisdiction. Wilmington Trust v. United StatesDistrict Court, 934 F. 2d 1026, 1029(9th
Cir. 1991). The generalpracticein trials in which the federalcourt’s admiralty jurisdiction hasbeeninvoked
is to try the caseto the bench,unlessthe caseinvolves a statute,suchasthe JonesAct, that confersthe right
to ajury trial. Id. at 1030.If an admiralty claim is broughtunderthe federalcourt’s diversity jurisdiction, the
right to jury will apply. Kathriner v. UNISEA. Inc., 740 F. Supp. 768, 769 (D. Alaska 1990). Otherswill
addressthe availability of jury trial in statecourt.
Voir dire is circumscribed in federalcourt, wherejudges generally handlethe questioningand are
not inclined to devote as much time to the process. Jury verdicts may be 10/2 in state court, but must be
unanimousin federal court.
Rule 42. Alaska Rule 42 provides for a changeof onejudge as a matter of right. There is no
comparablefederal civil rule.
Rule 45. Alaska Rule 45 provides that subpoenasare to be issuedby the clerk. FederalRule 45
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empowerscounselto issueand sign subpoenason behalf of any federalcourt in which counsel is authorized
to practice. More importantly, federalsubpoenasmay beservednationwide,without needforjudicial action
in the jurisdiction in which the subpoenais served.
Rule 54. The scopeof recoverablelitigation expensesis substantiallybroaderunderAlaska Rule
54, coupled with Rule 79. Recoverability of counsel’s cost of travel to deposition,settlementconferences.
dispositive motion hearingsandtrial may proveespeciallywelcome. CompareAlaska Rule Civil Procedure
79 with LR 54.1 (D. Alaska).
Rule 56. The standardsfor summaryjudgment in the languageof Alaska and FederalRules 56 are
identical. In practice, however, federal judges appearto have substantially more latitude to adjudicate
summarily.
The federal rule of practice appearsin Anderson v. Libertv Lobbv. Inc., 477 U.S. 242 (1986). The
district judge is to determinewhetherthere areany genuinefactual issuesthat properly can beresolvedonly
by a finder of fact becausethey may reasonablybe resolved in favor of either party. Id. at 250. If the
evidenceis merely colorable,or is not significantly probative,summaryjudgment may be granted.IJ. at 24950. The standardmirrors that for a directed verdict under Federal Rule Civil Procedure50(a). u. at 250.
“In the federal system, summary judgment is not a ‘disfavored proceduralshortcut.“’ Bukoskev v. Walter
W. Shuham.CPA. P.C., 666 F. Supp. 181, 184(D. Alaska 1987)(Cellotex citation omitted)
TheAlaska SupremeCourt doesnot appearto have“comparedandcontrasted”stateandfederalRule
56 practicein a publishedcase.Andersonandits companionRule 56 case,CelotexCore. v. Catratt,477 U.S.
3 16(1986),do not appearto havebeendiscussedin any detail in any Court decisions. Over the years,it has
certainly seemedthat the Alaska Supreme Court only requires the slightest factual showing to thwart
summaryjudgment. See,e.g., Mever v. State,994 P. 2d 365 (Alaska 1999). The Court doesseemto think
the standardit laid down in Totem Marine Tug & Barge, Inc. v. Alveska Pineline service Co., 584 P. 2d 15,
25 (Alaska 1978)differs from the Celotex/Andersonstandard,at any rate. See,e.g.,2. at 10 n.3 (Eastaugh
concurring). The difference appearsto be that the Alaska standardrequiresonly a piece of admissible
opposingevidence,and prohibits any assessmentof the submittals to determinewhetherreasonableminds
could find in favor of the proponentof that evidence.
Rule 68. An offer of judgment may be made under both regimes, but the offeree is not at risk of
liability for attorney feesunder the federal rule.
Caveat: The effect of a vessel owner’s acceptanceof an offer of judgment in a state court b
personamaction on a potential in rem claim againstthe owner’s vesselappearsto be unsettled. The owner
will be at risk of a subsequentin rem claim. The offeror, who may havediscountedhis claim in making the
offer, will be at risk of being collaterally estoppedon the quantum of damages,should owner’s failure to
pay the b personamjudgment force the offeror to pursuean in rem claim.
Rule 82. Alaska Rule of Civil Procedure82 provides for a routine award to the prevailing party of
a sum intendedto partially reimbursethat party its lawyers’ fees. The sum allowed may be enhancedif one
or more of elevenspecified factors exist in a particular case.
Admiralty adheresto the “American Rule” and does not ordinarily award fees. Alveska Pineline
Service Co. v. Wilderness Society, 421 U.S. 240 (1975); Kalmbach. Inc. v. InsuranceComnanv of Stateof
2
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Pennsvlvania.Inc., 422 F. Supp.44,45-46 (D. Alaska 1976). Feeswill also not be awardedin an admiralt?,
action heardon the federalcourt’s diversity side. u. Accordingly, feeswill only beawardedin federalcourt
admiralty actionsin exceptionalcases,suchas for wrongful withholding of maintenanceandcure, Glvnn v.
Rev Al ManagementCorn., 53 F. 3d 1495(9* Cir. 1995),for vexatiousconduct.28 U.S.C.$1927.or when
provided for by the contract at issue.When an admiralty case is brought in Alaska state COURunder the
“Saving to Suitors Clause,”however,Rule 82 applies. Hughesv. FosterWheelerCo, 932 P.2d. 784 (Alaska
1997);Williams v. Eckert, 643 P.2d. 991 (Alaska 1982).
II. RULES OF EVIDENCE.
Rule 609: Imoeachmentbv Evidence of Conviction of Crime. The federal rule is broaderthan the
staterule, permitting introduction of evidenceof conviction of any felony, as well as of any crime involving
dishonesty or false statement. The state rule limits the evidence to conviction of a crime involving
dishonestyor false statementonly. The commentaryto this rule limits admissibility to “crimenfulsi, “which
are crimes involving some element of deceitfulness,untruthfulnessor falsification. Without substantial
analysisor citation to persuasiveauthority,however,theAlaska SupremeCourt steppedbeyondthe boundary
that appearsin the commentary and held that convictions for grandlarcenyandrobbery fall within the state
rule’s scope.Lowell v. State,574P.2d 1281(Alaska 1978);Alexanderv. State,611 P.2d469 (Alaska 1988).
The court seemsto have decidedto expandthe scopeof the rule basedon little more than the state’s thesis
that “thieves are dishonest” in Lowell. Quure whether “murderers are dishonest,” “child molesters are
dishonest,”and so on.
The federal rule also reachesfurther back in time, ten years to the more recentof the date of the
conviction or of the releaseof the witness from confinementimposed for that conviction. The Alaska rule
reachesback only five years to the date of conviction. In a civil case,the court may allow evidenceof an
older conviction, if the court is satisfied that admission is necessaryfor a fair determination. But this
exceptionshould only be made in rare circumstances. Clifton v. State,751 P.2d. 27 (Alaska 1988).
Rule 702. Badly neededquality control was establishedover expert opinions in federal actionsby
Daubertv. Merrell Dow Pharmaceuticals.Inc., 509 U.S. 579 (1993). The Alaska SupremeCourt adopted
that standardin Statev. Coon, 974 P.2d 386 (Alaska 1999). Much litigation under the Daubert rule has
ensued,endeavoringto sort out the types of opinion within its scope. If Rule 56jurisprudenceis any guide,
the Alaska SupremeCourt can beexpectedto be lessrestrictive of information presentedto thejury thanthe
federaljudiciary. Accordingly, sometypes of tenuoustheory may fare better in the stateforum.
III. Appellate Forums
After 12 years of Republican presidential appointments, followed by 8 years of Democratic
appointmentsthat had to survive an increasingly partisan Republican-controlled senate, it is probably
perceived that the Ninth Circuit is less plaintiff-friendly than the Alaska Supreme Court. Important
considerationsbearingon how the two forums may vary on substantiveissueswill be addressedby others.
November7,200O
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STATE VERSES FEDERAL COURT
DoesForum Really Matter?
Oneneedlook no further than the recentevolutionin vesselemploymentcontractsto
realizethat forum doesmatter. The simplefact is that the majority of “Alaska water” injuries
occur uponvesselsownedby non-Alaskacompanies.In an effort to minimize litigation costs
and curtail perceivedlitigation risks, manyvesselcompaniesare requiringseamensign
employmentcontractswhich limit their right to bring claim in AlaskaStateCourt; and in many
instances,limit the seaman’sright to bring claim in the Stateof Alaskaentirely.
Conversely,injuredseamenmay wish to bring their claim in communitieswherethe risks
andbenefitsof their vesselwork are widely recognizedandunderstood.Seriously,as an injured
seamanwho spendsfive monthsat seadoinghardlaborunderextremeweatherconditions,
crampedaboarda vesselwith little room for movementandno way of escape,with a groupof
fellow-workers whoseideaof literatureis the latestArchie comic magazine- all in exchangefor
havingthe opportunityto enjoythe other sevenmonthsof the year pursuinglife opportunitiesof
your choice- who do you want to decideyour damagesfor lossof enjoymentof life: A Boeing’s
mechanicin Seattlewho works his/herforty hourwork week, weekin and week out; or
individualsfrom a fishing/vesselrelatedcommunitywho haveeither enduredvessellife
themselves,or hada friend or family memberawayat sea.
For the injuredseaman,havinga judge or jury who understandsthe peculiarnatureof
vesselwork is of value. Conversely,limiting litigation risks and curtailingcostsis of valueto
vesselinterestsandtheir insurers. Simplyput, forum matters;and anymaritime attorneyworth
their salt - be they plaintiffs counselor defendant’scounsel- will seekto take advantageof their
STATEVERSES
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forum options;or statedotherwise,forum shop.
Thereare,however,certaintypesof maritimeinjury claimswhich may only be brcy*,zhtin
certaincourts. Additionally, the law andremediesin onecourt may be different than in anc;ner
court.
This paperaddressessomeof the substantivedistinctionsunderlyingmaritime claims
brought in federaland statecourt. It by no meansaddresses
all of the distinctions.or suggests
that someissuesaremore importantthan others. Rather,it is hopedthat understandingsomeof
thesedistinctionswill allow the maritimeclient to makeinformed andappropriatedecisionsin
the litigation process.
EXCLUSIVE FEDERAL COURT CLAIMS
Assumingthe readerhasreadthe U.S. Constitution,namelyArt. III, $2, the first issue
addressedhereinfocuseson the fact that therearecertaintypesof maritime claimswhich may
only be brought in FederalCourt. Perhapsthe most commontypesof suchclaimsare claimsto
foreclosea vessellien.
A claim to foreclosea vessellien is accomplishedby first filing a claim againstthe vessel
itself in federalcourt. A vesselclaim must be verified per the requirementsof Supplemental
Admiralty Rule C, and L-AR(e)(3). As with an in personamcomplaint,a claim againstthe
vessel,alsoknown asan b m claim, requiresservice. In its most savageform, this is
accomplishedby filing a host of pleadingsalongwith the complaint,followed by the subsequent
arrestof the vesselby the U.S. Marshal’soffice. The arrest’smore civil counter-partis really no
arrestat all, andinvolvesa voluntaryappearance
by the vesselin the action,generally
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accomplishedby way of negotiationwith the vessel’scounselwhereinin exchangefor foregoing
arrest,securityof VE
:s stipulateduponbetweenthe partiesanddepositedwith the court -
ratherthan the vesselitseif. Thesetwo options,arrestversesstipulatedvalue.are discussedmore
fully below.
Thereare two obvious,althoughnot alwayseasyto determine,prerequisitesto
foreclosinga vessellien; 1) the subjectat issuemust be a vessel;’and 2) the basisfor the lien
must be recognizedundermaritimelaw andthe lien properlyperfected.Assumingthe subjectat
issueis a vessel(the generalgive awayis a floating objectwith onepointy end- although
certainlynot exclusivelyconclusive),the crucialquestionis whetherthe claim at issueinvolvesa
maritime lien. In that the subjectof this sessioninvolvesmaritimepersonalinjuries,this paper
will focus almostentirely on liensapplicableto maritime personalinjuries. However, a
multitude of other maritimeliensexist, from wageliens,preferredvesselmortgages,general
average,andsalvage,to liensfor necessaries
andcontract. The logicalstartingplacefor
determiningwhethera claim givesrise to a maritimelien is the FederalMaritime Lien Act. 46
U.S.C. $0 31301-31343.
Claims for maritime injury, in that suchclaimsareconsideredmaritimetorts, give rise to
a maritime lien. 46 U.S.C. $31301(5)(B). Theseincludeclaimsfor maintenanceand cure
(Cortes v. BaltimoreInsularJ.ine,387 U.S. 367 (1932)), unseaworthiness
(Jvlarshallv. Manese,
85 F.2d 944 (qthCir. 1936)),andgeneralmaritime law negligence(W
orkman
Cov,
’ In fact, a maritime lien may, undercertaincircumstances,extendto other maritime
propertynot a vessel. However,in that this paperdoesnot addressmaritime liensper se,this
subjectis left for anotherday.
STATE VERSES FEDERAL COURT
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179U.S. 552 (1900)). Remember,a claim for JonesAct negligenceis not a generalmaritime
law claim; but rather a creationof federalstatutemeantto modify the generalmaritime la;
L:nderthe provisionsof the JonesAct, -C6U.S.C. § 688,a seamanmay only bring a JonesAct
negligenceclaim agamsthis/heremployer. &
. .
&Q CosmoDolltanSm
Co. i’. MC-.
337 U.S. 783 (1949). For this reason,a JonesAct claim may not be broughtin m.
Plamals1’.
SSPIs.-I.X DEL RIO. ‘77 U.S. 151(1928).
Becauseclaimsior maintenance,cure,unseaworthiness
and generalmaritime law
negligencemay be file both in rem andh persona, why even
restrict
your forum optionsby
bringing any of the claims in rem? Although a variety of reasonsmay exist underthe facts of an
individua! case,thereare, in general,:nreereasonsto file in EXE
1. The vesselconstitutesthe only real adequatesecurityto obtainamountsowed,
i.e., the vesselowner haslimited financialresources,there is no insurance
coveringthe claim, the insuranceis inadequateto coverthe whole of the claim, or
the insurer’sfinancialstatusis seriouslyin doubt;
2. It is irn:;artantto clearlesserliensto obtaina clearbill of sale;
3. You want somethingdone,andyou want it donenow.
Shouldyou needto arresta vessel,remember- vesselarrestscomewith ctihis. The first
cost is monetary,and includesthe U.S. Marshal’sfee for arrestingthe vessel,the daily fee for the
vest. _dirodian,and the price of insurancewhile the vesselis underanest. Beforethe U.S.
Marshal’soffice will arresta vessel,it requiresa deposit;which in Alaskamay rangefrom
severalthousanddollars,to asmuch as $1O,OOO.OO,
dependingon the
’ T and sizeof the
vessel.
The secondcost is a bit more abstract,but no lessreal - polarization. Fe\\ Ii*.
STATE VERSES FEDE:
_ :OURT
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fdriate
a vesselowner more than havingtheir vessel,often their only sourceof income,tied up by the
U.S. Marshal. Conversely,this samefact will sometimesresult in a quick resolutionof the
seaman’sdispute,asthe financiallystrappedvesselowner (whoseinsurancecoveragemay not
requireits insurerto pay the costsof vesselreleaseup front) seeksto resolvethe overalldispute
giving rise to the arrest. As a practicalmatter,however,arrestsrarely give rise to quick
resolutions,andin the long run more often thannot simply prolongandagitatean already
adversarialprocess.
Shouldthe vessel’sarrestbe necessary,it must be pursuedin FederalCourt. In addition
to the verified in m complaint,severalotherpleadingsmust be filed, includinga motion to
issuewarrant for arrest,an ti m arrestwarrant.a motion for substitutecustodian,andpleadings
evidencinginsurance.Additionally,a Form 285 must befiled with the Marshal’soffice, along
with the cashdeposit.
Remember,the purposeof arrestis security. For this reason,following an arrestoneof
two thingswill occur. Either a hearingwill be heldlvhereinthe amountof securityis determined
and depositedwith the court (generallyby way of bondor letter of undertaking),or the vesselis
sold andits proceeds(following deductionfor custodiallegisexpenses)depositedwith the court.
Either way, the sum depositedwith the court will then representthe res of andfor the in m
defendant.
The other way to accomplishthe appearance
of the in m defendantandsecurethe yesis
to enter into an agreementwith the vessel’scounselLvherebyin exchangefor not subjectingthe
vesselto arrest,the vesselappearsin the case(usuallyaccomplishedby way of filing a claim to
STATE VERSES FEDERAL COURT
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ownershipper SupplementalAdmiralty Rule E(8)), answersthe complaint,anddepositswith the
court an agreeduponsecurity. The securitymay be cash,a bond,a letter of undertaking.or other
item of security. If this courseis taken,the securitydepositedwith the court is substitutedfor the
vesselin the matter. &
SupplementalAdmiralty RulesC & E.
In the eventthe arrestof the vesselis not necessaryat the time of filing the complaint.but
it is nonethelessimportantto preservea claim againstthe vessel,you may file a verified in rem
claim againstthe vesselalongwith the in persona claims,andpreservethe statuteof limitation
with respectto the in rem claim by filing a motion to hold arrestin abeyance,alongwith the
motion to issuewarrant andthe ~ rem warrant.per the dictatesof LAR(e)(S).
Another type of claim relevantto maritimepersonalinjurieswhich may only be litigated
in federalcourt is a claim broughtpursuantto 46 U.S.C. $ 183(a),commonlyreferredto as a
“Limitation of Liability” action. SeealsoSupplementalAdmiralty Rule F.’ But seeMapcQ
Petroleum.Inc. v. MemohisBargeLine. Inc,, 849 S.W.2d3 12(Term. 1993)(holdingTennessc;
statecourts havesubject-matterjurisdiction over limitation of liability defenseraisedin state
court answerwhere the defenseis contestedby the plaintiff, andwerethe shipownerhad not
petitionedfor limitation in federalcourt). TheJvIancoPetroleumdecision,however,would
appearto run contrary to & ParteGreen,286 U.S. 437 (1932); VaticanShrimp Co.. Inc,, 820
F.2d 674 (Sh Cir. 1987);CincinnatiGas& Electric Co,, 533 F.2d 1001(6thCir. 1976);and
Cooperv.L.H. Allison, 412 P.2d356 (Ore. 1966). Additionally,at leastoneAlaska Superior
Court judge expresslyfailed to follow JvIapcoPetroleum,holdingit waswithout jurisdiction to
heara contestedlimitation defense.I-Iorton v. Marine SolutionServices.Inc,, CaseNo. 3AN-97-
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3770 CI (Order datedNovember19, 1999).
WHAT LAW APPLIES?
Although commonsensedictatesthat federalcourtswill applyfederalmaritime law to
maritime claimsbeforeit, questionsoften ariseas to what law appliesto maritime claims brought
in statecourt pursuantto the savingsto suitorsclause,28 U.S.C. $ 1333. Although broughtin
Alaska StateCourt, all substantiveaspectsof a maritimepersonalinjury claim aregovernedby
federalmaritime law. Weasonv. Harville, 706 P.2d306,308 (Alaska 1985),m,
-non
v.
Citv of Anchora=, 478 P.2d 815,818 (Alaska 1970);G. Gilmore& C. Black, The Law of
Admiralty, $6-58(2d ed. 1975). & &Q Barberv. New EnglandFish Co,, 510 P.2d806: 808
(Alaska 1973);Maxwell v. Olsen,468 P.2d48,51 (Alaska 1970).
As notedabove,a claim underthe JonesAct is not a claim underthe generalmaritime
law, but rather a claim broughtpursuantto federalstatute. As notedby the AlaskaSupreme
Court, the substantiverulesof the generalmaritime law aremodified by the JonesAct, andsuch
modified rulesapply in savingsclausecasesbroughtunderthe JonesAct. Brown v. State,816
P.2d 1368, 1371(Alaska 1991). Therefore,wherethe JonesAct operatesto modify the
substantiverulesof the generalmaritime law, the statecourt (aswell as federalcourts) must look
to the JonesAct, andlz~f the generalmaritime law, in determiningthe appropriatelegalrule. M.
The JonesAct, by its very existence,was, andis, meantto modify the substantiverulesof
the generalmaritime law. Up until the early 1900’s,a seamanwasableto pursuegeneral
maritime law negligenceclaimsagainsthis employerfor vesselinjuries. In 1903,however,the
United StatesSupremeCourt handeddown its decisionin TheOsceola,189U.S. 158(1903),
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holding that a seaman could no longer sue his employer for negligence under the general
maritime law. In response to this substantive rule of federal maritime law, t:
U.S. congress
passed what is known as the Jones Act, 46 U.S.C. 5 688, providing seamen injured through
negligence a cause of action against their employer. mmen
v. United States, 281 U.S. 38.40
(1930).
The Jones Act is a federal law. “It is well-established that ‘(the Alaska Supreme Court) is
not bound by decisions of federal courts other than the United States Supreme Court on questions
of federal law.“’ Bod7ai v, Arctic Fu,
990 P.2d 616,619 (Alaska 1999), Quoting,
Totemoff v. State, 905 P.2d 954,963 (Alaska 1995). Stated otherwise, Alaska State Courts are
bound only by the decisions of the United States Supreme Court and Alaska Supreme Court on
questions of federal law, including questions of law as they relate to the Jones Act. For this
reason, it may be in your client’s interest to bring his/her claim in Alaska State Court when the
issues involved are adversely effected by Alaska Federal Court and/or Ninth Circuit precedent,
but unresolved by either the United States or Alaska Supreme Courts.
A Jones Act claim filed in state court may not be removed to federal court. 28 U.S.C. 4
1445(a); Burnett
,380 U.S. 424,434 (1965); Burchett v,
Careill, 48 F.3d 173, 175 (5thCir. 1995) (per incorporation of FELA, a Jones Act claim may not
be removed to federal court). Likewise, a defendant is prohibited from bringing a declaratory
judgment action in federal court which arises out of the same facts as a seaman’s Jones Act claim
brought in state court. That is, a defendant is not allowed by way of the backdoor what it cannot L
access through the front dooi. Great I<akesDredge & Dock Co. v. Ebanks, 870 F. Supp. 1112,
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1118(S.D. Ga. 1994). Finally, wherea JonesAct claim is joined with non-JonesAct general
maritime law claims(suchasmaintenance,cureand/orunseaworthiness)
which might be
removablestandingalone,the entirematter mustremainin the statecourt. I-Ionkinsv. Dolnhin
Titan Int’l. Inc,, 97f
’ 924 (Sh Cir. 1992). However, where a general maritime law claim is
broughtin statecourt \\. .auta JonesAct claim, the claim may beremovedto federalcourt if an
independentbasisfor removal- suchasdiversity or federalquestion- exists. I.n Re Ditile, 935
F.2d 61 (5rhCir. 1991).
APPROPRIATE VENUE / APPROPRIATE FORUM
Obviously,federalcourtshavesubjectmatterjurisdiction to heara JonesAct claim.
Questionsmay arise,however,asto which federalvenueis appropriate.Both the JonesAct and
FELA (which the JonesAct incorporates)containvenueprovisions. Thevenueprovisionsare
not identical.
The last sentenceof 46 U.K.
$688 provides:
Jurisdictionin suchactionshallbe in the court of the district in
which the defendantemployerresidesor in which his principal
office located.
Although framed in jurisdictionalterms,the United StatesSupremeCourt held that it refersonly
.
to venue. PanamaRailroadCo. v. Johnspn,264 U.S. 375(1924).
FELA’s venueprovisionis found at 45 U.S.C. (556, andprovides:
Under this chapteranactionmay be broughtin a district court of
the United States,in the district of the residenceof the defendant,
or in which the causeof actionarose,or in which the defendant
shallbe doing businessasthe time of commencingsuchaction. . . .
JonesAct venuewas specificallyaddressedin The PureOil Co. v. S~WX, 384U.S. 202
STATE VERSES FEDERAL COURT
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(1966). InThe P.!’ 0 il, the defendantwas an Cnio corporation,with its principle placeof
businessin Illinc:.
Theplaintiff, Suarez,was a -amaninjuredaboardone of defendant’s
vesselsoff the coastof Florida,andsueddefendantin FederalDistrict COX for the Southern
District of Florida. As notedby the SupremeCourt, “[i]t is concededthat as enactedand
originally interpretedthe statute(46 U.S.C. 6 688) would not authorizeF’ -. : l:enuein this
instance,for corporateresidencetraditionallymeantplaceof incorporation.m this caseOhio, and
PureOil’s principal office is in Illinois.” However, lookingto the 1948revisionto 28 U.S.C. s
1391, which expandedthe federalgeneralvenueprovisionto include,in a?;iition to placeof
incorporationor license,the placewherethe defendantis “doing business,”andtaking into
accountpast mandatesto liberallyccrlstruethe JonesAct soasto extendto seamenthe
substantiverights for which it was intended,the SupremeCourt heldthat proper venuemay be
found in either the placeof defendant’sprincipleresidence/incorporation,
or within the district
wheredefendantis “doing business.”The PureOil Co., 384at 203-207. !-‘ such.the JonesAct
andFELA venueprovisionsareof accord.
A
JonesAct claim filed in onefederalvenuemay, however,be movedto anotherfederal
venuepursuantto 28 U.S.C. $ 1404. At leastone court in our district hascited to 28 U.S.C. $
1404as authority authorizingtransferto a different federalvenue. Willard v. The FishinpCo. of
Alaska. Inc., 1995A.M.C. 1,58, 1359(D. Alaska 1995).2
Unlike the JonesAct, FELA containsan expressforum provisionwhich is separateand
* The motion to transfervenuein Willard wasactuallybroughtpursuantto a venue
clausein the seaman’semploymentcontract. JudgeSingletoncited to 28 U.S.C. 6 1404as
additionalauthority for authorizingthe changeof venue.
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distinct from its venueprovision. The last sentenceof 45 U.S.C. 5 56 provides:
Thejurisdiction of the courtsof the United Statesunderthis
chaptershallbe concurrentwith that of the courtsof the several
States.
The JonesAct containsno counter-partprovision,andwhetherthe FELA provisionis
appropriatelyincorporatedinto the JonesAct (perthe provisionsof incorporationfound at 36
U.S.C. 5 688) asa right extendedto injuredseamenseparateanddistinct from the JonesAct‘s
own venueprovisionis a matter of hot debatein this state.
The “debate” arisesin the contextof forum selectionclausescontainedin manyseaman
employmentcontractswhereinthe clausemandatesan exclusivefederalforum in eitherAlaska
or Washington,andin someinstances,in Washingtonexclusively. The “debate” finds at its base
the United StatesSupremeCourt’s decisionin Bo\*dv. GrandTrunk W.R. Co,, 338 U.S. 263
(1949). The claims in Boyd involvedthoseof an injuredrailway worker, andwere brought
pursuantto FELA. At issuein Bovd, was whetherthe injuredworker’s statutoryright of a state
forum (45 U.K.
$56) couldbe abrogatedby a forum selectionclausein the injured worker’s
employmentcontract. The injuredworker arguedthat sucha clausewas void pursuantto other
provisionsin FELA, namely45 U.S.C. $ 55, which providesin pertinentpart:
Any contract,rule regulation,or decreewhatsoever,the purposeor
intent of which shall beto enableanycommoncarrier to exempt
itself from anyliability createdby this chapter,shall to that extent
be void . . .
In holding in favor of the injured worker, the United StatesSupremeCourt stated:“the right to
bring the suit in any eligibleforum is a right of sufficientsubstantialityto be includedwithin the
Congressionalmandateof 9 5 of the Liability Act. . . . The contractbeforeus thereforeis void.”
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Boy& 338 U.S. at 265.3 Providedthe FEL.A.forum clauseis seenac -zxxate anddistinct from
:d pursuantto the Jones
the JonesAct’s venueclause(which this CISzr humbly assertsit is
Act’s incorporationof FELA, it would appeara forum selectionclauselimiting a seaman’sright
to a stateforum is void asit relatesto the seaman’sJonesAct claim. If only the injured seaman
hadit so easy!
This straight forward andeminentlyreasonableandanalyticalreadingof the JonesAct is
cloudedby two other United StatesSupremeCourt decisions,w
.
.
‘1L CruiseJ.mes.Inc. v.
Off sShoreCa,,407 U.S. 1 (1971). Both
Shue, 499 U.S. 585 (1991) andsata
Shuteam! The Bremeninvolvedclaimsbroughtpursuantto the generalmaritime law. In both
cases,the tinited StatesSupremeCourt upheldcontractualforum selectionclauses;noting that
while forum selectionclausesare historicallydisfavored,they areprima facievalid. Neither
case,however,involved a seaman’sclaim underthe JonesAct. Becauseboth Shuteand&
Bremenwere decidedpursuantto the generalmaritime law, and becauset!x TcnesAct’s very
purposewas to modify the generalmaritimelaw (&own v. State,816P.2dat 1371),this writer
againhumbly assertscourts shouldlook to the provisionsof the JonesAct. through incorporation
of FELA (i.e. Boy@,not the generalmaritimelaw, in decidingwhether:: z.force forum
selectionclauseswith respectto seamenJonesAct claims. Having saidthis, at leastonereported
caseemanatingfrom an Alaska Statetrial court hasheldotherwise. E&a v. AmericanSeafpnas
3 a Brown v. State 816P.2d 1368(Alaska 1991). Frown involveda seaman’sunion
negotiatedemplo!.yent con&actwhich soughtto restrict the seaman’sJonesAct rights. The
AlaskaSupremeC .xut, cirizg m
andthe JonesAct’s incorporationof FELA, namely45
U.S.C. z 55, held the contrzt provisionvoid.
STATE VERSES FEDERAL COURT
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a,
2000A.M.C. 1156(AlaskaSuperiorCourt 2000).4
The basisfor this writer’s assertionthat courtsshouldlook to the JonesAct/FELA in
decidingthe forum selectionissueasit relatesto JonesAct claims,andnot the generalmaritime
law, is found by looking to the holdingin The Rremeuitself Remember,The Rremeqinvolved
a contractualdisputebetweentwo multinationalcorporation,andthe claimswere brought
pursuantto the generalmaritimelaw. With this in mind, The Brw
Court stated:
A contractualchoice-of-lawclauseshouldbe held unenforceable if
enforcementwould contravenea strongpublicpolicy of the forum
in which suit is brought,whether declared by starue or judicial
decision. a, egz, Bovd . GrandTrunk W.R. Co, 338 U.S. 263,
94 L.Ed. 5570 S.Ct. 26 (;b49). (Emphasisadded.;
The Bremen,407 U.S. at 523. That is, the clauseshouldbe held unenforceableif the clause
contravenesa public policy declaredby statute. In so stating,the United StatesSupremeCourt
citesto Bovd, which expresslyheld a forum selectionclausein an employmentcontractvoid
pursuantto statutorydeclarationunderFELA; namely45 U.S.C. $9 55 & 56. Sb,, in that it
reliesuponthe holding in The Bremen,leavesthe holdingin Bovd unaffected.
Thereexist a numberof other argumentsagainstthe enforcementof forum selection
clausesas they relateto JonesAct claims. However, in that contractualforum selectionclauses
arethe topic of other discussionsduringthis session,they arenot coveredhere. Despitethese
manyarguments,to datethe decisionsemanatingfrom the AlaskaStateCourts havegenerally
4 The m decisionwasnot appealed.Anothercaseinvolving the samecourt and forum
selectionclauseis, however,presentlyon appealto the AlaskaSupremeCourt.
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upheldthosecontractualprovisionswhich expresslyincorporateinjury claims.’ SeeFitka,supra:
Nunez v. AmericanSeafoodsCo.. h,
CaseNo. 3DI-99-141CI (Order datedSeptember6.
2000): I(ulaszewic7,CaseNo. 3AN-00-5615CI (Order datedJuly 20,200O). It is anticipated.
that the AlaskaSupremeCourt will weigh in with its decisionon the subjectwithin the next six
to nine months.
’ In Fodzai v Arctic Fiord Inc,, 990 P.2d6 16(Alaska 1999),the Alaska SupremeCourt
refusedto apply a forum selectionclausein a seaman’semploymentcontract. It did so,however,
on the basisthat the forum selectionclausedid not applyto plaintiffs injury claimsunderthe
languageof the clauseitself.
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DOES FORUM REALLY MATTER?
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Maintenance
Submitted
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& Cure
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#2000-014
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MAINTENANCE
I.
II.
AND CURE
Maintenance and Cure - A general overview
A.
A right created under general maritime law that arises by virtue of
the seaman’s employment.
B.
Applies only to seaman and against the employer. Fink v. Shepard S.S,
&, 337 U.S. 810,815,69 S.Ct. 1330(1949).
C.
Arises whenever a seaman becomes injured or ill while in service of
the vessel. O’Donnell v. Great Lakes Dredae & Dock Co,, 318 U.S. 36,
63 S.Ct. 488 91943).
0.
Is not fault based. The Osceola, 189 U.S. 158,23 S.Ct. 483 (1903)
Maintenance and Cure - Defined
A.
8.
Maintenance - a per diem living allowance, equal to the value of the
seaman’sfood and lodging received while aboard the vessel. Calmar
S.S. Corp. v. Tavlor, 303 U.S. 525,527,58 S.Ct. 651(1938).
1.
Only entitled to maintenance expenses actually incurred.
Nichols v. Barwick, 792 F.2d 1520 (llth Cir. 1986).
2.
Entitled to maintenance from the date seaman departs the
vessel until maximum medical cure (point at which no further
improvement in the seaman’s medical condition may be
reasonably expected). Vauahan v. Atkinson, 369 U.S. 527,82
S.Ct. 997, 8 L.Ed.2d 88 (1962).
3.
Restrictions on Rate of Maintenance by Contract.
Cure - the payment for reasonable medical expenses for the illness or
injury which occurred while seaman was in service of the vessel.
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Calmar S.S. Corp. v. Taylor, 303 U.S. 525,527,58
1.
S.Ct. 651(1938).
Must be in service of the vessel. Chandris. Inc. v. Latsis,
115
S.Ct. 2172 (1995); Joseph v. River Parishes Co.. Inc.
2000 WL 1134363 (E.D.La.,2000).
a.
III.
Service of the vessel v. arising out of employment
2.
From the date seaman departs the vessel until maximum
medical cure.
3.
Seaman must mitigate his medical expenses and may not refuse
reasonable medical treatment. Kossick v. United Fruit Co,, 365
U.S. 731(1961).
4.
Treatment must be definitely ascertained. Bonneauv, Guidance
Fishina Corp., 919 F. Supp. 46 (D. Mass 1996).
5.
A vessel owner must only pay for curative, as opposed to
palliative, medical treatment. Stanovich v. Jurlin, 227 F.2d
245,246 (9th Cir.1955).
Evidentiary Standards
A.
B.
Reinstatement of Maintenance
1.
Not in the same procedural posture as a party seeking summary
judgment. Sefcik v. Ocean Pride Alaska. Inc,, 844 F.Supp. 1372
(D.Alaska,1993); Nuzum v. Dritsik Fisheries. Inc, 1995 A.M.C.
1491.
2.
Summary Judgment Standard. Glvn v. Rov Al Boat Mamt. Carp,,
57 F.3d 1495 (gth Cir. 1995)
Rate of Maintenance
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IV.
1.
A factual question.
2.
Seaman’s burden to prove the value of maintenance. Yelverton
v. Mobile Laboratories. Inc,, 782 F.Zd 555 (5th Cir. 1986).
The Collateral Source Rule
A.
Medicare. Moran Towina &+ITransu.. Co. v. Lombas, 58 F.3d 24
(2d Cir. 1995).
B.
Offset for employer funded insurance. Davis v. Odeco. Inc,, 18 F.3d
1237 (5th Cir. 1994).
V.
1.
(1) whether the employee contributes to the plan, (2) whether
the benefit plan stems from a collective bargaining agreement,
(3) whether the plan covers both work-related and nonworkrelated injuries, (4) whether payments under the plan correlate
with the employee’s length of service, and (5) whether the plan
contains specific language requiring that benefits received
under the plan be set-off against a judgment adverse to the
tortf easor. Id.
2.
Ultimate inquiry is whether the tortfeasor established the plan
as a prophylactic measure against liability. Id.
Defenses to Maintenance and Cure
A.
Willful misconduct. Warren v. United States, 340 U.S. 523,71 S.Ct.
432,95 Ed. 503 (1951)
1.
Intoxication
2.
HIV drug use
3.
Fighting
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0.
Intentional concealment of a disabling condition
1.
VI.
Factors:
a.
Seaman intentionally misrepresented or concealed facts;
b.
Non-disclosed facts were material to the employer’s
decision to hire the seaman;
C.
Causal connection existed between the withheld
information and the injury complained of in the instant
suit. flcCorpen v. Central Gulf Steamship Core., 396 F.Zd
547 (5th Cir.1968).
Damages
A.
Attorneys Fees.
1.
May recover attorneys fees where failure to pay maintenance
and cure has been “willful and persistent.” Glvnn v. Rov Al Boat
Manaaement Carp,, 57 F.3d 1495,1501(9th Cir.1995).
2.
Willful and arbitrary. Guevara v. Maritime Overseas Corp., 59
F.3d 1496 (5th Cir.1995).
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Alaska
LHWCA,
State Workers’ Compensation
and Seamen Benefits
Areas of Exclusive
Submitted
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InjuryKLE
and Mutual
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#2000-014
Jurisdiction
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LHWCA, ALASKA STATE WORKERS’ COMPENSATION & SEAMEN BENEFITS
Areas of Exclusive& Mutual Jurisdiction
Today’sprogramhasallottedapproximatelyfifteen minutesto this subject;a subject
which standingaloneis worthy of a full day’sdiscussion.With this in mind. the following is by
no meansall-inclusive. Rather,it is meantto simplytouch uponthe surfaceof what is truly a
dynamicandcomplexsub-areaof maritime law; whosetrue texture is as variedasthe facts from
which its subjectsarise.
LHWCA
OR
STATE WORKERS’ COMPENSATION & SEAMEN BENEFITS
Prior to 1927,federalworkers’ compensationenactmentswerewithout applicationto
.
maritime workers. Following the United StatesSupremeCourt’s decisionin SouthernPactfic
Co. v. Jensen,244 U.S. 205 (1917),which held stateworker’s compensationschemesextending
benefitsto individualsinjureduponnavigablewatersunconstitutional,the federalcongress
passeda federalworkers’ compensationschemefor longshoreandharborworkers,The
LongshoreandHarbor Workers’ CompensationAct (“LHWCA”). 33 U.S. C. § 901a m
By
its very terms, however,the LHWCA only providedcoveragefor injuries“occurring uponthe
navigablewaters of the Unites States. . . if recovery. . . throughworkmen’scompensation
proceedingsmay not validly be providedby Statelaw.” Thus,underthe LHWCA, but consistent
with Jensen,a bright line (the so-calledJensenLine) was developedwith respectto maritime
worker injuries which occurreduponnavigablewaters(LHWCA), andthosewhich occurred
uponshore(stateworkers’ compensation).
Problemsquickly surfacedwith this “exclusive”jurisdiction systemas courtsbegan
LHWCA, ALASKA WORKERS’ COMPENSATION
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grapplingwith what to do aboutinjuries incurred upon navigable waters by predominately
shore-
sideworkers, andthoseincurredby maritime workerswhile standingashore. In additionto the
potential inequitiesfacedby the injuredworker, statesandtheir employersstruggledwith the fact
specific questionof which worker was coveredby which system,andwhethera compulsorystate
mandatedinjury benefitsystemactuallyprovidedan employer/employee
the intendedprotection.
Prior to the 1972amendmentsto the LHWCA, a seriesof decisionswere issuedby the
United StatesSupremeCourt meantto addresstheseproblems. Pursuantto thesedecisions.pre1972jurisdiction for marine-relatedinjuriesfell into oneof four spheres:1) injuries incurredby
individualswho were seamen,i.e., mastersor membersof the vessel’screw - exclusivefederal
maritime jurisdiction underthe generalmaritime law andthe JonesAct; 2) injuriesincurredupon
navigablewatersby non-seamenemployedin whole or in part uponnavigablewaters- exclusive
jurisdiction underthe LHWCA by its very terms; 3) injuriesincurreduponnavigablewatersby
workers who work, by its nature,was primarily shorebasedbut may, on occasion.necessitate
work uponnavigablewaters,i.e., “maritime but local” - concurrentfederaland statejurisdiction
undereither the LHWCA or stateworker’s compensationsystem,Davis v. Denartmentof Labor
& Industriesof the Stateof Wash-,
317 U.S. 249 (1942); Calbeckv. --‘^.,’
8.h
Insua
Q, 370 U.S. 114(1962); and4) shore-sideinjuresincurredby non-seamenemployedin whole
or in part uponnavigablewaters- exclusivestatejurisdiction, NaciremaOperatingCo. V,
Johnson,396 U.S. 212 (1969). Throughthe developmentof thesejurisdictional schemes,the
Court focusedprimarily uponthe situs of the injury, asopposedto the : :
determiningthe applicablecompensationscheme.
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:Tfthe worker, in
In 1972,the federalcongresspasseda numberof amendmentsto the LHWCA. Although
the majority of commentariesregardingtheseamendmentsaddress33 U.S.C. $905(b), andthe
abolishmentof the maritime workers’ unseaworthiness
claim, the amendmentsalsosoughtto
addressthe federal/statejurisdictionalproblemswith which the courtshadstruggledover the
preceding45 years. Most significantly,the amendmentsextendedthe LHWCA’s
coverage
to
workers engagedin maritime activitieson “shoresideadjoiningareas,wheremaritime workplace
activitiesoccur.” Throughtheseamendments,congressextendedthe coverageof the LHWCA
shoreside,andpastthe “JensenLine.” 33 U.S.C. $902(4).
In addition to addressingthe “situs” question,congressalso requiredthat the worker be
“engagedin maritime employment.” 33 U.S.C. 5 902(3). That is. the statusof the worker is also
of importancein determiningcoverageunderthe LHWCA. To qualie for coverageunderthe
LHWCA, the worker’s activity must havea sufficientconnectionto traditionalmaritime activity.
33 U.S.C. $ 902(2). In determiningwhethera w-orkermeetsthe statusrequirement.the United
StatesSupremeCourt rejectedthe “moment of injury-”test. NortheastMarineTerminalCO.V.
Caputo,432 U.S. 249,273 (1977)(congressintendedthat the LHWCA cover“personswhose
employmentwas suchthat they spentat leastsomeof their time in indisputablylongshore
operationsand who, without the 1972amendments,would becoveredfor only part of their
activity”). As such,an individualengagedasa longshoreman
will havecoverageunderthe
LHWCA eventhoughtheir injury may haveoccurredwhile engaged in non-longshoring
activities
ashore.
Despitecongress’attempt to straightenthejurisdictionalpicture underthe LHWCA, two
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subsequentUnited StateSupremeCourt decisionsandonefurther amendmentto the Act halve
skewedthe focus on this most difficult issue. In the first decision,SunShip. Inc. v.
Pennsvlvania,447 U.S. 715 (1980),the United StatesSupremeCourt recognizeda state’sright to
extendbenefitssupplementaryto federalremedies,includingremediesunderthe LHWCA. In so
doing, the Court held that statesarenot prohibitedfrom providing worker’s compensation
benefitsto individualsinjured ashore,eventhoughthe individualmight alsobe exitled to
coverageunder the LHWCA. Under SunShin.Inc, concurrentjurisdiction _I ..Y for the
maritime worker injured ashore. Giventhe extensionin benefitsprovidedunderthe 1972
amendmentsto the LHWCA, however,the injuredworker will, asa practicalmatter, usuallyfare
better underthe LHWCA thanthe statecompensationscheme.
In the seconddecision,Director. OWCP v. PeriniNorth River Assoc.,459 U.S. 297
(1983). :ae SupremeCourt heldthat the statusof a maritime worker was only of significance
wherethe injury occurredin an “adjoining” area. That is, wherea worker is injuredon navigable
waters,and would havereceivedcoverageunderthe LHWCA prior to the 1972amendments,
coveragewould lie underthe Act. In soholding,the Court reasonedthat the 1972amendments
were meantto extend,not restrict, coverageunderthe Act. Becausepre-1972coverageunderthe
LHWCA followed a strict locality/situstest, wherea post-1972injury actuallyoccursupon
navigablewaters, coveragewill lie underthe Act.
Finally, in 1984the federalcongressagainamendedthe LHWCA to automatically
excludecoverageunderthe Act to individualswhoseinjury occurredin a coveredsitus,but
whosestatuswas clearly not that of a maritime worker. Congressdid so by excludingfrom the
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definition of “employee”, foundat 33 U.S.C. 4 902(3),the following individuals:
individualsemployedexclusivelyto perform office clerical.
secretarial,security,or dataprocessingwork;
(A)
(B) individuals
employed
by a club, camp, recreational
operation.
restaurant,museum,or retail outlet;
(C) individualsemployedby a marinaandwho are not engagedin
construction,replacement,or expansionof suchmarina(exceptfor
routinemaintenance);
(D) individualswho (i) areemployedby suppliers,transporters,or
vendors,(ii) aretemporarilydoing businesson the premisesof an
employerdescribedin paragraph(4), and(iii) arenot engagedin
work normallyperformedby employeesof that employerunder
this chapter;
(E)
aquacultureworkers;
(F) individualsemployedto build, repair,or dismantleany
recreationalvesselundersixty-five feet in length;
(G) a masteror memberof crew of any vessel;or
(H) anypersonengagedby a masterto loador unloador repair any
small vesselundereighteentons net;
If individualsdescribedin clauses(A) through(F) are subjectto
coverageundera Stateworkers’ compensationlaw.
With respectto sub-section(G), althoughcongressclearlyattemptsto signify the
respectiveexclusiveness
of the generalmaritime law/JonesAct andthe LHWCA, questionsof
fact often arisewith respectto whetherthe injuredworker is “a masteror memberof crew of any
vessel.” In suchcases,the worker may pursueboth seamenandLHWCA benefits
simultaneouslyuntil the matter is finally adjudicated.SouthwestMarine. Inc. v. Gizoni, 502
U.S. 8 1 (1991). Further,in Papaiv. Harbor TUP& Bars, 67 F.3d 819 (grhCir. 1995),rev’d
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other grounds,520 U.S. 548 (1997), the Ninth Circuit Court of Appealsheld that an injured
worker could pursueseamenbenefitseventhou;.:; nepreviouslypursuedand receivedbenefits
underthe LHWCA. Of further significancein the Papaidecisionis the fact that the injured
worker’s non-seamanstatuswas determinedat trial beforean ALJ in the LHWCA matter. This
samerule, that an injuredworker may pursueseamenbenefitseventhoughhe/shehasreceived
benefitsunderthe LHWCA, alsoapplieswherethe LHWCA claim was compromisedandsettled
beforethe filing of a JonesAct claim. Figueroav. CamnbellIndustries,45 F.3d 311 (91hCir.
1995).
ALASKA WORKERS’ COMPENSATION
OR
SEAMEN BENEFITS
As notedabove,states,includingAlaska,mayextendbenefitssupplementaryto federal
remedies. SunShip. Inc. v. Pennsvlvania,
447 U.S. 715(1980). However, while a statemay
extendbenefitssupplementaryto federalremedies,includingseamenremedies,statelaw “may,
not deprivea personof anysubstantialadmiraltyrights asdefinedin controlling actsof Congress
or by interpretativedecisionsof this (United StatesSupreme)Court.” Fone& Talbot. Inc. v,
Hawn, 346 U.S. 406,409-10 (1953). Statedotherwise,“an exclusiveremedyprovisionin a state
workmen’s compensationlaw cannotbe appliedwhenit will conflict with maritime policy and
underminesubstantiverights affordedby federalmaritime law.” Thibodauxv. Atlantic Richfield
&,
580 F.2d 841, 847(SthCir. 1978),m
denied,442 U.S. 909 (1979). This rule hasbeen
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consistentlyadheredto by the AlaskaSupremeCourt.’ Cavin v. Stateof Alash? 3 P.3d 323
(Alaska2000); Stateof Alaskav. Brown, 794 P.2d 108(Alaska 1990). This is true evenwhere
the seamanpreviouslyreceivedworkers’ compensationbenefits. Brown, 794 P.2dat 1IO.
However,paymentsmadeunderworkers’ compensationare subjectto offset shouldthe
employeeprevail on his/hermaritime claims. Brown, 794 P.2dat 110 n. 1, w,
Barberv.
.
New Em&tndF&I Co,,510 P.2d 806,813n. 39 (Alaska 1973).
Unlike manystates(suchas Washington’),which havebroadsweepingexclusionsfor
seamenundertheir workers’ compensationstatutes,Alaska’sstatutes,while excludingmost
seamen,havean areaof supplementalcoveragenot seenin most states. AS 23.30230provides
that “commercial fishermen,asdefinedin AS 16.05.940”are not coveredby the Act. AS
16.05.940(4)defines“commercialfisherman”as:
an individualwho fishescommerciallyfor, takes,or attemptsto
take fish, shellfish,or other fisheryresourcesof the stateby any
means,andincludeseveryindividualaboarda boat operatedfor
fishing purposeswho participatesdirectlyor indirectly in the
taking of theseraw fisheryproducts,whetherparticipationis on
sharesor asan employeeor otherwise;however,this definition
doesnot applyto anyoneaboarda licensedvesselasa visitor or
guestwho doesnot directly or indirectlyparticipatein the taking;
“commercial fisherman”includesthe crewsof tendersor other
floating craft usedin transportingfish, but doesnot include
’ Likewise, the rule hasbeenappliedwith respectto attemptedlimits on a maritime
worker’s right to pursueremediesunder33 U.S.C. 6 905(b). Bpyberv. New FncJland
Ftsh Co,,
510P.2d 806 (Alaska 1973).
2 R.C.W. 5 1.12.100provides:“the provisionsof this Title (WashingtonWorkers’
Compensation)shall not applyto a masteror memberof a crew of any vessel,or to employers
andworkers for whom a right or obligationexistsunderthe Maritime laws or Federal
Employees’CompensationAct for personalinjuriesor deathof suchworkers.”
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craft~
who do not oDeratef lshinp eearor ew
.
.
. . . vessels
actmies relatedtQ
navipationor ODof the veqsel;in this paragraph“operate
fishing gear” meansto deployor removegearfrom state*.\aters,
removefish from gearduringan openfishing seasonor period, or
possessa gill net containingfish duringan openfishing period;
The notableexceptionto the exclusionof “commercialfisherman”is processorsaboard
vesselswhich processwithin Alaskastatewaters(within at leastthreemiles from shore). Given
virtually all vesselsinvolvedin an Alaskafishery will at somepoint comewithin three miles of
shore,this statuterequiresAlaskaworkers’ compensationbr carriedon all processors\L.orking
aboardvesselsin Alaskafisheries.3
Processorsworking aboardfishing vesselsareseamen.J-Ieidukv. STARBOUND, 1995
A.M.C. 1377, 1378(D. Alaska 1993),citing, Wells v. Arctic AlaskaFisheriesCorp., 1991
A.M.C. 448 (W.D. Wash. 1990);Jvfundenv. Ultra-AlaskaAssociates,A83-179 Civ. (D. Alaska
April 24, 1985)(unpublished).With respectto processors,therefore,the Stateof Alaskahas
extendedbenefitssupplementaryto federalmaritime remedies.
3 Other factors which may give rise to the state’slocalinterestare“point of hire” of the
processor,or substantialtaking of suppliesfrom Alaskanbusinesses
by the vessel.
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Powerpoint
Recent
Submitted
varltlme
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InjuryKLE
Presentation:
Developments
by Bert Ray
#2000-014
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RECENT DEVELOPMENTS
l
Bert Ray
Keesal, Young & Logan
1029 W. 3d., 6th Flr.
Anchorage, Alaska 99501
l
(907)
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l
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279-9696
RECENT DEVELOPMENTS
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Maritime
RECOVERABLE DAMAGES
RIGHT TO A JURY TRIAL
Personal
Injury/CLE
#2000-014
49
RECOVERABLE
DAMAGES
Post Miles v. Ar>exDecisions
DOHSA
Post Yamaha v. Calhoun Decisions
NIED
Effect of Miles Decision on
Remedies For Seamen
l
Miles v. Apex Marine, 498 U.S. 19 (1990).
- No recovery for loss of consortium by survivors
- No recovery for loss of future earningsby the
estate.
2
marltlme
Personal
InjuryKLE
1~2000-014
50
l
Rationale.- A seaman’sremediesare
limited to those aHorded by the Jones Act,
which only allows the recovery ofpecuniary
damages, and the courts may not
supplementthese remediesunder the
general maritime law
MILES
l
l
Courts Should Not SupplementRemedies
WhenCongressHas Limited Them by
Statute.
Remedies,to the extentpossible, should be
uniform.
- Goal of uniformity
- d@culties with joint and several liability
Maritime
Personal
Injury/CLE #2000-014
51
No Recovery Of Punitive
Damages By Seamen Against
Employer
l
No punitive damagesfor personal injury or
death.
- Miller v. American PresidentsLine 989 F.2d
1450 (6th Cir. 1993);
- Jacksonv. Unisea, 824 F.Supp. 895 (D. Alaska
1992);Ortega v. Oceantrawl,822 F.Supp 621
(D. Alaska 1992);
- In Re Aleutian Enter.. Ltd., 777 F.Supp. 793
(W.D. Wash 1991).
No Recovery of Punitive
Damages For Failure to Pay
Maintenance and Cure
l
l
l
Marltime
Glvnn v. Rov Al Boat Ma. Corn., 57 F.3d
1495 (9th Cir. 1995)
Stonev. International Marine Carriers, 9 18
P.2d 55 1 (Alaska 1996).
Long v. F/V MELANIE, 918 F.Supp 323
(W.D. Wash 1996).
Personal
Injury/CLE
#2000-014
52
No Recovery Of Non-Pecuniary
Damages By Spouse of Injured
Seaman
Horslev v. Mobil Oil COID.,15 F.3d 200
l
(1st cir 1994)
l
l
Smith v. Trinidad Corn., 992 F.2d 996 (9th
cir. 1993)
Murrav v. Anthonv J. Bertucci Constr., 958
F.2d 127 (5th Cir. 1992)
Applying Miles To Seamen
Claims Against Third Parties
l
The Ninth Circuit has held that Miles
applies and limits damagesagainstthird
parties resulting from a seaman’sdeath.
- Davis v. Bender ShiDbuildine & ReDairCo., 27
F.3d 426 (9th Cir. 1994)
- Ludahl v. SeaviewBoat Yard, 1995AMC 440
(W.D. Wash. 1994)
Maritime
Personal
InjuryKLE
112000-014
53
Personal Injury Claims by NonSeafarers
l
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Amtrack Sunset.Ltd., 121 F.3d 1421 (11th
Cir. 1997) no recovery of loss of society,
loss of consortium, or punitive damagesfor
personal injury actions brought under the
general maritime law.
Hunter v. Seabulk Offshore, 993 F.Supp
973 (E.D. La. 1998) (Injured passengermay
not recover punitive damagesunder general
maritime law).
DEATH
l
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l
Maritime
ON THE HIGH
ACT
SEAS
46 USC 761- 768
Applies to deathscausedby wrongful acts
occurring beyond one marine league (3
miles) from US shores.
Recovery limited to pecuniary damagesof
survivors
Personal
Injury/CLE
112000-014
54
DEATH ON THE HIGH SEAS
ACT
Doolev v. KAL, 523 US -, 1998 AMC
1940 (1998).
l
- Courts may not supply GML survival remedy
in order to supplement limited wrongful death
remedy provided by DOHSA, even for nonseafarers killed in plane crash. Thus, no pain
and suffering allowed for wrongful death of
non-seafarers when DOHSA applies.
DEATH ON THE HIGH SEAS
ACT
l
Zichernmn v. Korean Airlines, 5 16 U.S. -,
1996 AMC 319 (1996).
- Warsaw Convention does not allow recovery of
non-pecuniary damages when DOHSA applies.
Marltime
Personal
Injury/CLE
1~2000-014
55
WHERE DO HIGH SEAS
BEGIN?
l
l
l
DOHSA. Applies to high seasbeyond three
nautical miles
In Re Air Crash Off Long Island. New
York, 2000 AMC 1217 (2d Cir. 2000) “high seas’moved by presidential
proclamation to 12 miles f?om coast, not 3.
2-l split opinion. Dissent arguesthat
proclamation doesn’t change domestic law.
CONGRESS RESPONDS
P.L. 106-181,
l
l
l
Maritime
(April
$2000)
ExcludesDOHSA’s application to air crashes
within 12 nautical miles of shore,but doesnot say
whether maritime law or statelaw applieswithin
12 miles.
Amends DOHSA to provide for the recovery of
loss of care, comfort and companionshipin
aviation disastercasesto which DOHSA applies.
Punitive damagesaren’t recoverablewhen
DOHSA applies
Personal
Injury/Cl-E
f/2000-014
56
PLACEOFINJURY
Mom v. GREEN WAVE, 210 F.3d 565
(5th Cir 2000).
DOHSA applied when decedent’sinjury
occurs at sea,even if the party’s negligence
is entirely land-based,and the death
subsequentlyoccurs on shore.
Bergen v. ST. PATRICK, 816 F.2d 1345 (9
Cir. 1987)
l
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l
Foreign Waters
l
DOHSA applies to accidentsthat occur in
the territorial waters-of a foreign country.
- Howard v. Crvstal Cruises,41 F.3d 527 (9th
Cir, 1994)
- Palankerv. Holland America Lines, 1999AMC
855 (W.D. Wash 1998)
Maritime
Personal
Injury/CLE
#2000-014
57
END RESULT
- DOHSA
DOHSA’s limit on recovery of nonpecuniary damagesand lack of survival
remedies continues to apply to casesother
than air crashes.
Someauthority that high seasstart at 12
miles.
l
l
Yamaha v. Calhoun, 516 U.S.
199 (1996)
l
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Maritime
Death of 12 year old girl on jet ski in
territorial waters.
Admiralty jurisdiction exists over claim.
Damagesavailable for the wrongful death
of a non-seafarerin territorial waters are
properly governed by state law.
Non-seafarer means someonenot covered
by the JonesAct or the LHWCA.
Personal
Injury/CLE
#2000-014
58
American Dredging Co. v.
Lambert, 81 F.3d 127 (11 Cir.
1996)
l
Yamaha extendedthe right of recovery in
wrongful death cases to the non-pecuniary
damagesafforded by Florida’s wrongful
death act.
Ghotra v. Bandila Shiqkg, Inc.,
113 F.3d 1050 (9th Cir. 1996)
l
Maritime
Marine surveyor falls within LHWCA
definition of employee, and therefore state
wrongful death statutedoes not apply to
claims resulting fi=omhis death.
Personal
InjuryKLE
#2000-014
59
In re Amtrack Train Crash, 12 1
F.3d 1421 (11th Cir. 1997)
l
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Damagesunder Alabama Wrongful Death
Act limited to punitive damages,which are
awarded based on showing simple
negligence
No apportionment of fault under Alabama
law
Court holds that these two provisions of
Alabama law are inconsistent with maritime
law and refusesto apply them.
Amtrack
Admiralty law regarding joint and several
liability, and apportionment of fault,
applies.
Plaintiffs may recover the damagesallowed
under the general maritime law
In addition, punitive damageswill be
allowed, but only upon a showing of
intentional, or wanton and reckless conduct.
12
Maritime
Personal
Injury/CLE
#2000-014
60
Amtrack
l
Yamaha does not apply to claims of injured
passengers,whose recoveries are limited to
pecuniary damagesunder 1lth Circuit
maritime precedent.
Palanker v. Holland America,
1999 AMC 855 (W.D. Wash.
1998)
l
Yamaha only applies to wrongful deaths
occurring in Stateterritorial waters.
DOHSA applies to death claim arising out
of accident in Mexican waters.
13
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#2000-014
61
Negligent Infliction of Emotional
Distress.
Gottschall, 5 12 US 532 (1994).
l
- FELA allows recovery for damagesfor the
negligent infliction of emotional distress
- “Those plaintiffs who sustaina physical impact
as a result of defendant’snegligent conduct, or
who are placed in immediate risk of physical
harm” may recover NIED.
Negligent Infliction of Emotional
Distress.
l
Buckley, 521 U.S. -,
(1997).
1997 AMC 2309
- Worker exposedto asbestosmay not recover
NIED damagesfor fear of future injury
- By itself, exposureto a carcinogenis not a
“physical impact” that allows recovery of NIED
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InjuryKLE
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62
Negligent Infliction of Emotional
Distress.
l
Chan v. Societv Exnedition Cruises,39 F.3d
1398 (9th Cir. 1994) Daughter of man
injured when life raft overturned in surf was
in zone of danger since she was also in the
life raft. Other children, who were not on
scene,could not recover NIED.
Negligent Infliction of Emotional
Distress
l
Must the plaintiff provide objective
evidence of emotional distress?
- Yes. Williams v. Carnival Cruise Lines, Inc.,
907 F. Supp.403 (S.D. Fla 1995).
- No. Clearsky Shipping 1998WL 560347 (ED
La. 1998).
Maritime
Personal
InjuryKLE
#2000-014
63
Right to a Jury Trial
l
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No Right to Jury Trial in Maritime Cases
Filed Under Federal Court’s Admiralty
Jurisdiction and Rule 9(h) is invoked by
Plaintiff.
Jury Trial Available When Maritime Case is
Filed Under Federal Court’s Diversity
Jurisdiction.
Right to a Jury Trial
l
Maritime
Ghotra v. Bandila Shinning, 113 F.3d 1050
(9th Cir. 1996). Plaintiff may file some
claims under diversity jurisdiction, and
others under admiralty jurisdiction, and get
jury trial on all claims.
Personal
InjuryKLE
#2000-014
64
Right to a Jury Trial
l
Watkins v. All Alaskan Seafoods,1996
AMC 1613 (D. Alaska 1995). Plaintiff may
amend rule 9(h) designation under Rule 15
and requesta jury trial.
Right to a Jury Trial
l
Maritime
Superior Court Judgesin Alaska are divided
as to whether a party has a right to a jury
trial over an admiralty claim in StateCourt.
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InjuryKLE
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Recent
Submitted
Marltime
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Injury/CLE
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#2000-014
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Recent
Developments
Seaman status
Chandris, Inc. v. Latsis, 1995 AMC 1840, 1862-63 (U.S. 1995)
Plaintiff was one of two supervising engineers for a fleet of six cruise
ships. He spent time working on the vessels and planned maintenance from the
shore. He began experiencing eye problems on a voyage to Bermuda. The
Court articulated a two-part test for the court to apply on remand:
mhe “employment-related connection to a vessel in navigation” necessary
to qualify as a seaman under the Jones Act, . . . , comprises two basis
elements: the worker’s duties must contribute to the function of the vessel
or the accomplishment of its mission, and the worker must have a
connection to a vessel in navigation (or an identifiable group of vessels)
that is substantial in terms of both its duration and its nature.
Harbor Tua & Barae Co. v. Paoai, 1997 AMC 1817, 1825 (U.S. 1997)
Plaintiff was hired for the day from the union hall and was painting a tug
boat at the time of the injury. Plaintiff had a history working as a deckhand for
the defendant, but work at the time was maintenance on a docked vessel.
The court refined the second part of the Chandris test: the substantial
connection to a vessel or fleet of vessels “requires a requisite degree of common
ownership or control.” Based on the lack of common ownership and the
maintenance work plaintiff was performing, there was insufficient evidence to
establish seaman status under the group of vessels concept.
Gizoni v. Southwest Marine Inc., 1995 AMC 2087 (gth Cir. 1995)
Trial court erred by refusing to instruct the jury that a worker can acquire
seaman status through permanent assignment to a group of vessels under
common ownership or control. Trial court also erred by instructing the jury with
an overly narrow instruction that required the jury to find that the vessel’s
purpose “must be the transportation of passengers, cargo, or equipment from
place to place across navigable waters. ” “Vessel” for purposes of seaman status
has a broader definition.
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In re Bov Scourts of America, 1996 AMC 892 (Sb Cir. 1996)
Error to find adult volunteer with the Sea Explorers was not a Jones Act
seaman. Issue of whether he was a seaman was a question for the jury to
decide under the Chandris standard. The court recognized that a gratuitous
worker can qualify as a Jones Act seaman.
Heise v. Fishina Comoanv of Alaska, Inc., 1996 AMC 1217 (gth Cir. 1996)
Plaintiff hired to work on maintenance and repair to fishing vessel in port.
Plaintiff lived on vessel while conducting repairs and injured back while securing
mooring lines on board the vessel. Court found plaintiff was a “land-based
employee” working on the vessel, and was not a Jones Act seaman.
DeLanqe v. Dutra Construction Co., 1998 AMC 2764 (9* Cir. 1998)
Carpenter riding on barge to a construction site was injured while helping
remove equipment from the barge after arrival at the construction site. The court
focused on whether the barge, which had to be towed by a tug boat, was a
“vessel in navigation.” The barge was moved only 4 times in 5 months and
served primarily as a stationary construction platform. Because its movement
was “incidental to its service as a work platform,” the barge was not a vessel in
navigation and the carpenter was not a Jones Act seaman.
Hoqqatt v. F/V Berinq Star, 1999 AMC 852 (W.D. Wash. 1998)
Plaintiff injured while working on barge anchored at St. Paul Island. The
barge had to be towed by a tug boat, was used primarily as a work platform, and
was never moved during plaintiffs employment. The court found it was not a
vessl in navigation and dismissed the complaint.
Witte v. Matson Naviaation Co.. Inc., 1998 AMC 2968 (W.D. Wash. 1998)
Port Relief Engineer had the same duties as a regular engineer on the
vessel for three eight-hour shifts while the vessel was in port. Because the work
was temporary work (for 3 days), the court found the worker did not have a
substantial connection to the vessel.
Cavin v. State, 3 P.3d 323 (Alaska 2000)
2
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70
Fish and Wildlife trooper’s claim for injury that arose in part while working
on state-owned vessels. The parties agreed that the trooper, who spent part of
his time on vessels, did “the ship’s work” and met the first part of the Chandris
test. The trial court found the connection to the vessel was not substantial in its
duration or nature. In the early years in the job, Cavin slept on the boat regularly,
and later he spent between 19% and 45% of his time on the vessels. The court
found Cavin made a prima facie showing of seaman status and remanded the
case for further consideration. The court can also consider seasonal variations in
determining whether the connection to the vessel was substantial in its duration
or nature.
The court further held that the trooper had an unseaworthiness and
maintenance and cure remedy because he was not a longshore worker and was
not excluded from the common law maritime remedies by the LHWCA. The court
adopted the reasoning of the Fifth Circuit in Aoaricio v. Swan Lake, 643 F.2d
1109 (5th Cir. 1981) in reaching this conclusion.
Schaller v. Arctic Alaska Fisheries Corn., 1996 AMC 438 (Alaska Sup. 1995)
Fisheries observer was a Jones Act seaman. Observer’s presence on the
vessel contributed to the vessel’s function because the vessel could not fish
without an observer on board.
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Forum selection
clauses
8 releases
Resner v. Arctic Orion Fisheries, 1996 AMC 1548 (9* Cir. 1996)
The release signed by the seaman was not valid.
The fact that seamen are wards of admiralty has “marked
consequence on the treatment given” their releases. Garrett v. MooreMcCormack Co., 317 U.S. 239,24748,
1942 AMC 1645, 1651 (1942).
Seamen’s releases are not governed by the usual contract principles; they
are more closely analogous to agreements between fiduciaries and
beneficiaries. 317 U.S. at 247,1942 AMC at 1651. The vessel owner, like
a fiduciary, has the burden of proving the validity of the release on which it
relies. Id.
To satisfy its burden, the vessel owner must “affirmatively show that
no advantage has been taken.” Id. It must prove that the release
was executed freely, without deception or coercion, and that it was
made by the seaman with a full understanding of his rights. The
adequacy of the consideration and the nature of the medical and
legal advice available to the seaman at the time of signing the
release are relevant to an appraisal of this understanding.
317 U.S. at 248, 1942 AMC at 1652.
1996 AMC at 1550. The court noted that the consideration was inadequate
($16,200 for 4 fingers); manner amount determined showed the seaman’s lack of
sophistication; seaman’s lack of legal advice other than from his employer
showed his lack of sophistication; and evidence suggested an element of
overreaching by the employer.
Willard v. Fishina Companv of Alaska, 1995 AMC 1358 (D. Alaska 1995)
(Singleton)
Count found that enforcing the forum selection clause was not
“fundamentally unfair” and that the Western District of Washington was not “an
inconvenient forum.” The court granted the motion to transfer venue.
Anderson v. Northcoast Seafood Processors, 1996 AMC 1339 (D. Alaska 1995)
(Sedwick)
Seaman hired in Kodiak and worked in Alaska pursuant to fishing contract
that contained choice of law and forum selection provisions that specified King
County, Washington. Several witnesses were in Alaska, and seaman was an
Alaska resident. Court found it fundamentally unfair to enforce the forum
selection clause and denied the motion to transfer venue. See Carnival Cruise
Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991). First, the defendant was actively
doing business in Alaska; second, the forum selection clause seemed to be
4
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73
directed primarily at seaman who were Washington residents who were hired in
Seattle; and third, the one-sided nature of the various contract provisions
reinforces the conclusion that there was dramatically unequal bargaining power
between the seaman and the vessel owner.
Bodzai v. Arctic Fiord, Inc., 2000 AMC 266 (Alaska 1999)
The defendant had moved to dismiss for improper venue, based on the
forum selection clause (King County, Washington). In reversing the trial court’s
decision to enforce the forum selection clause, the Alaska Supreme Court held:
(1) Seaman’s claim for maintenance, cure & unearned wages does not arise
under the terms of the employment contract; (2) seaman’s claim for
unseaworthiness does not arise under the terms of the employment contract; and
(3) seaman’s claim under the Jones Act does nota rise under the terms of the
employment contract. The seaman’s claim under each of these areas of law
arises by operation of law because (1) the duty to provide maintenance and cure
“is one annexed by law to a relation, and annexed as an inseparable incident
without heed to any expression of the will of the contracting parties; (2) the duty
to provide a seaworthy vessel is “absolute,” and (3) the Jones Act claim arises
under the Jones Act, itself, and not under the contract that creates the
employment relationship that is a predicate for liability.
Fitka v. American Seafoods Comnanv, 2000 AMC 1156 (Alaska Sup. 2000)
(Torrisi)
Court finds forum selection clause is reasonable because it requires the
seaman to bring suit in federal court in either Alaska or Seattle.
5
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DuBois v. Northern Hawk PS, 2000 AMC 1510 (W.D. Wash. 2000)
Defendant must pay for chiropractic treatment as part of maintenance and
cure where the physician states that chiropractic treatment is part of his cure and
he continues to improve. Defendant’s skepticism about chiropractic treatment is
not a basis to deny payment.
Bovden v. American Seafoods Co., 2000 AMC 1512 (W.D. Wash. 2000)
Defendant must pay maintenance and cure for the period of time between
two epidural steroid injections by two different doctors in two different locations.
The defendant had resumed maintenance after the second doctor provided
treatment. In addition, the summary judgment standard does not apply to
determining whether to reinstate maintenance and cure, because such a
standard would invite litigation, cause delays, and undermine the policy of
simplicity in providing maintenance and cure.
Miles v. American Seafoods Co., 2000 AMC 757 (gth Cir. 1999)
Seaman entitled to maintenance and cure for 1997 reinjury to right
shoulder that he initially injured in 1995 and signed a release of all claims relating
to the 1995 injury in 1996. The 1996 release did not bar the future claim for
maintenance and cure related to subsequent work.
Brassea v. Person, 2000 AMC 214 (Alaska 1999)
During course of treatment for inguinal hernia that arose on the vessel,
doctor treated second hernia condition. Seaman is in the service of the vessel
when a subsequent condition manifests itself during the treatment for the initial
condition and, but for the initial injury, the seaman would have been working on
the vessel at the time the second condition manifested itself. Thus, vessel owner
required to pay maintenance and cure for condition that manifested itself during
the course of treatment for the initial condition that manifested itself while on the
vessel.
6
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75
Etheridqe v. Rainier Investments.
(Sedwick)
Inc., 1998 AMC 2978 (D. Alaska 1998)
The seaman must show ambiguity on the question of whether he has
achieved maximum cure in order to reinstate maintenance (see Sefcik v. Ocean
Pride Alaska. Inc., 1994 AMC 2192 (D. Alaska 1993)), but the summary
judgment standard applies to determine whether the seaman is entitled to past
maintenance. Court found the defendant had to pay the past maintenance.
Nuzum v. Drtisik Fisheries. Inc., 1995 AMC 1491 (D. Alaska 1995) (Holland)
Applying Sefcik v. Ocean Pride Alaska. Inc., 1994 AMC 2192 (D. Alaska
1993) to question of whether to reinstate maintenance and cure. Based on
plaintiff showing ambiguity about whether he has reached maximum cure, the
court ordered maintenance and cure reinstated.
Moore v. Sallv J, 1998 AMC 1707 (W.D. Wash. 1998)
Awarding attorney’s fees for willful and persistent refusal to pay
maintenance and cure and awarding prejudgment interest at 12% because of the
equities of the case.
Fioueiras v. F/V Pacific Fury, 1997 AMC 294 (W.D. Wash. 1996)
Maintenance and cure is barred where plaintiff gave fraudulent answers in
his employment application by stating he had no prior on-the-job injuries even
though he had recovered judgment and settlements for a least 4 prior injuries,
one of which involved a knee injury. Confirms that actual fraud may bar the right
to maintenance and cure (see Omar v. Sea-Land Service. Inc., 1987 AMC 1890,
1894 (gth Cir. 1987)).
Park v. Alakanuk Native Corp., 1995 AMC 377 (D. Alaska 1994) (Von Der Heydt)
Because the seaman was in breach of his employment agreement by
leaving the vessel and drinking at a bar 7 miles away from the vessel, his claim
for maintenance and cure arising from an accident while driving back from the
bar was barred.
7
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Koscik v. Suoreme Alaska Seafoods. Inc., 1996 AMC 2522 (D. Alaska 1996)
(Holland)
Seaman employed by Supreme Alaska suffered injury while loading vessel
owned by Tokyo Shosen. Supreme Alaska brought third-party claim against
Tokyo Shosen for maintenance and cure paid to seaman. Supreme Alaska may
seek indemnity from Tokyo Shosen for maintenance and cure it paid to the
seaman, and liability for maintenance and cure is apportioned according to each
party’s proportionate fault.
Lono v. F/V Melanie, 1996 AMC 1341 (W.D. Wash. 1996)
When seaman seeks unearned wages as part of a claim for maintenance
and cure (and thus distinguished from a claim for earned wages), the court
concluded that the federal law pre-empts the Washington state law that provides
for double wages.
Rowell v. Tvson Seafood Grouo, 1999 AMC 2277 (W.D. Wash. 1999)
Except in the context of collective bargaining agreements (see Gardener
v. Sea-Land Service. Inc., 1986 AMC 1521 (gth Cir. 1986)) a seaman’s right to a
reasonable maintenance payment is a legal right that cannot be abrogated by
contract (a Cortes v. Baltimore Insular Line, 287 US. 367, 371 (1932)). Court
held that contract provision limiting maintenance to $20 per day was
unenforceable, and the question of a reasonable level of maintenance was left
for decision at trial.
Lioscomb v. Foss Maritime Inc., 1996 AMC 1598 (gth Cir. 1996) (affirming 1995
AMC 1554 (W.D. Wash. 1995))
Seaman member of a union is entitled to “accumulated time off” as part of
unearned wages related to an injury. The seaman earned accumulated time off
for each day worked and each day he was required to remain on board, which
was an inherent part of his wage agreement. Thus, “a seaman taken ill or injured
in the service of his ship is entitled to the ocmpensation he would have earned
but for his illness or injury.”
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Bero v. Fourth Shiomor Assoc., 1996 AMC 1591 (Sth Cir. 1996) (affirming 1995
AMC 1237 (W.D. Wash. 1995))
Discussing the period of employment for purposes of unearned wages and
distinguishing between “coastwise articles” and “voyage articles.” “Voyage
articles” typically involve a single voyage that can last several months.
“Coastwise articles” typically involve several shorter voyages in and among
various ports, usually for a definite term. The court found the period of
employment was limited to the duration of the voyage on which the seaman was
injured.
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Practice pointers
L&in
v. Maritime
Overseas Corp., 1995 AMC 982 (D.Alaska 1995) (Sedwick)
Court weighed the plaintiffs choice of forum, the access to proof, the
financial
burden on the parties, convenience
of the witnesses,
and the interests
of justice and granted the defendant’s motion to transfer venue. All of the parties
were from outside Alaska, almost all of the witnesses were from outside Alaska,
access to proof was better in Washington, and the case did not raise important
Alaska issues.
Huahes v. Stellar Seafoods, Inc., 2000 AMC 1160 (D. Alaska 2000) (Holland)
Based on choice of law analysis in tort cases, the court found that Alaska
law (which permits informal, private conferences between defense counsel and a
claimant’s treating physician) applies to maritime case involving physicians from
Washington, Minnesota and Wisconsin because the relationship of the parties to
the lawsuit centered in Alaska.
Ferris v. Veto, Inc., 1996 AMC 596 (D. Alaska 2000) (Singleton)
Plaintiff brought a LHWCA claim within 3 years of his injury, and then filed
a maritime claim more than 3 years after his injury. The court found that the
Jones Act and unseaworthiness claims were barred by the statute of limitation;
but the LHWCA claim tolled the statute of limitations for the maintenance and
cure claim. The court placed particular emphasis on its finding that maintenance
and cure presented “the same issues in most respects” as a LHWCA claim, the
fact that Veto had notice of the maintenance and cure claim within the 3-year
period, and the fact Ferris was pro per for much of the litigation.
Henderson v. United States, 1996 AMC 1521 (U.S. 1996)
“In actions arising under federal law, commenced in compliance with the
governing statute of limitations, the manner and timing of serving process are
generally nonjurisdictional matters of ‘procedure’ controlled by the Federal
Rules.” Thus, Fed. R. Civ. P. 4(m) establishes the rule for determining the time
to serve process in a maritime lawsuit in which the United States is the
defendant.
10
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United States Marshals Service
District of ;Jaska
Admiralty
Randy M. Johnson
Linda Klemm
Information
Packet
Supervisory Deputy
Civil Desk
In this information packet, we have tried to answer some of your most commonly asked
questions.
The packet includes a Schedule of Fees and <‘sJmmissions, the District of A:::zi;a Admiralty
Procedures, and some samples of how our C .3. Marshal Form 285s should Cc completed.
Also included are examples of an In Rem Arrest Warrant. Order Appointing a Sub
: from
Custodian and a Notice of Arrest received from the District Court. The three docun;.
three different cases and three different attorneys. You will notice that there have been oome
name changes.
Please note the section in bold type on page two of the of Order appointing Pat L -. .--: ss
Substitute Custodian. Use this language in your motion to Ihe court and order prepareu l;,)rthe
judges’s signature.
The Local Admiralty Rules can be found on the U.S. District Court’s Homenage at:
httn://wwwakd.uscourts.gov
Maritime
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Injury/CLE
#2000-014
82
United StatesMarshals Service
Schedule of Fees and Commissions
September 5,200O
Policy:
SinceDecember,1993the U.S. Marshalsdoesnot serveSummonsandComplaintsunless
orderedby the court.
Process:
For eachitem servedby mail or forwardedfor serviceto anotherJudicialDistrict: $8.00plus
postalfees
For eachitem personallyserved(includesendeavors)by a Deputy U.S. Marshal,$45.00per
Deputy U.S. Marshal,per hour or portion of an hour.
For preparinga Notice of Sale,Bill of Saleor U.S. MarshalDeed.$20.00
For Copies:$0.10per page
Mileage:$0.325per mile
Additional expenses:Actual costsof roundtrip mileage(at FederalTravel Regulationrates)and
out of pocket expenses.e.g., tolls, parking,airfare,vehiclerental, keeperfees,insurance
premiums,advertisingcosts.
Commissions:
On the first %l,OOO.OO
collected,or portion thereofthe commissionis 3% on the amountin
excessof $1000.00the commissionis 1.5%.
The miminum commissionis $100.00andthe maximumcommissionis $50,000.00.
Marltlme
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InjuryKLE
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U.S. Marshals
D/AK Admiralty
Service
Procedures
October 16,200O
I.
Theseare someof the questionsyou will beaskedwhen you initially
contactthe MarshalServiceconcerninga vesselarrest.
Pm-Arrest:
Is the crew still on boardthe vessel?
How many peopleareon board?
Do they know the vesselis goingto be arrested?
Are you awareof any assaultivebehaviorfrom crew membersin the past?
Wheredo you plan to havethe vesselarrested?
This information helpsus determinehow many Deputieswill beneededto arrestthe
vessel. The deputies’safetyis alwaysour prime consideration.
A.
MarshalsServicepolicy prohibitsthe seizureof vesselson the high seas.
B.
If a vesselcannotbe securedto a dock or buoy,the MarshalsServicewill seek
relief from the Court’s Order to seizethe vessel,unlessa SubstituteCustodianhas
beenappointedby the Court.
C.
If the vesselis securedto a dock or buoy, the attorneyhastwo options:
1.
Obtain a SubstituteCustodianOrder at the sametime the In Rem Warrant
is issued. Historically, this optionhasbeenthe leastexpensive.The
amountof the depositrequiredby the MarshalsServiceis generally$
3,OOO.OO
but the depositcanvary with the locationof the vessel. The
depositcoversthe following expenses:
a.
Transportationcostsandper diemexpensesfor the Deputy or
Deputiesinvolvedin the seizure.
b.
U.S. MarshalsServicefees:As of September5,200Othe rate is
$45.00 per hour (or portion thereof)per Deputy U.S. Marshal
involvedin the seizure.
1
Maritime
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Injury/CLE
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C.
d.
Publicationcostsof the Notice of Arrest andNotice of Sale.
InsuranceCost: A minimum of S 1 million per vesselis obtainedto
cove: the U.S. MarshalsServiceat a cost of $5.00per day, with a
minimum costof $50.00. Insurancefor the substitutecustodian
canbe obtainedat an additionalcostof $18.00per dav. with a
minimum cost of $50.00. Thesecostswill 1
irigher
coverage.The actualinsurancecoverag_.the
valueof the vessel. It shouldbe notea-.-.-*LX insuranceonly
insuresthe governmentandcustodian&nst fault basedliability
for damageto or lossof the vesseland/orits equipmentand
appurtenances.It doesnot otherwiseinsureagainstlossor
damage.Arrest of vesselmay void it’s hull and machinery
insurance.
An attorneymay obtainsubstitutecustodianinsurancefrom a
companyof their choice. The MarshalsServicenow only usesone
company.
Marsh Risk & InsuranceServices
One California Street
SanFrancisco,California 94111
Phone:415-743-8494Fax 415-743-8078
Veit Metzroth is the point of contactfor ,.-.I’ questionsyou may
haveabouttheir insurancecoverage.4 15-74;-‘; - ?3
2.
The attorneycanrequestthe MarshalsServiceto maintainCLnf the
vesselandhire a keeper. This option hasbeenprovento be the .
expensive.In oneinstancethe guardcost aloneexceeded$57,OOu.1, 13a
governmentcase. The MarshalsServicewill contractwith a bondedand
licensedsecurity/guardcompanyandarrangefor 24 hour securityfor the
vessel. This will take additionaltime becauseof FederalProcurement
Regulations.We will be contactingat least3 companiesfor bids. In
additionto the guards,largervesselsmay requirea crew to be hired to
handleany specialmaintenanceand/orsafetyconsiderations.The required
depositwill coverthe first 21 daysof seizureexpenses,keeperandcrew
costs. Whenthe depositis depletedto point wherethere is only seven
daysof expensesremaining,the attorneywill be asked to advance
additio-.alfunds to cover another21 daysof expenses.In accordancewith
Locai .-&niralty Rule &AR) (e)l 1, if the attorrt;’ hasnot depositedthe
expensemoneywithin 2 businessdaysof the :z ::st, the Marshal Service
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Maritime
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will petition the Court to releasethe vessel. In additionto the expenses
coveredby the depositwhereyou haveobtaineda substitutecustodian.the
depositmust alsocoverthe following expenses:
a.
Wagesof guardsandany requiredcrew membersandtheir per
diem costs. Transportationof personnelto the arrestsite if the site
doesnot havean acceptablesecuritycompanyand/or necessary
crew membersat that location.
b.
Tugs,cars,water craft to transportpersonnelto andfrom the vessel
if it is at a buoy.
D.
SpecialCircumstances:If at any time of an attemptedarrest,it appearsthat the
vesselis in a dangerouscondition(e.g., sunk,sinking or in dangerof sinking,
cargoon fire, etc.) it will not be arrestedby the MarshalsService. The Marshals
Servicewill return to the Court for further guidance.
E.
The attorneymust providea USM-285 (requestforms from the USMS office) for
eachvesseland/orpersonto be servedat the time of the arrest. The USM m285
elude in the snecial instruction box a list of the documents to be
1.
2.
F.
In a normal vesselarrest,it is recommendthat the following be served:
a.
The Vessel
b.
The SubstituteCustodian
C.
Captain/master,if on board
Thepaperworkpackagefor the vesselmust containa copy of the warrant,
complaint(someattorneysincludea summons),anda copy of the
SubstituteCustodianOrder. The substitutecustodianshouldreceivethe
samedocumentsin their packageto enablethem to respondbetterto
questionsthey may receive.
The Mn-,.,nals will not make any vessel arrest without a deposit. If an attorney
wants me In Rem Warrantheld in abeyancethey must obtaina court order in
accordancewith LAR (e)(5)
G.
The attorneyis responsiblefor locatingthe vessel. Upon notification of the
locationof the vessel,the MarshalsServicewill attemptto arrestit assoonas
possible. TheDeputy will contactthe appointedsubstitutecustodianbefore
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Maritime
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leaving to arrest the vessel. If we travel to the location and discover that the
vesselhasdepartedwhile the Deputy was en route, all feesandexpensesincmrtd
arr deductec*+omthe deposit.
H.
II.
The .\,iarshalsServicewill always seekguidanceform the Court regardingthe
arrestof vesselsinvolvedin bankruptcyproceeding.
Post-Arrest:
A.
The MarshalsService needsUSM-285sin order to publishthe Notice of Arrest
andNotice of Sale. This form is alsoneededto conductthe sale. Sc~e attorneys
publish their own Notice of Arrest, if you do so, you need to provide us with
proof of publication.
B.
The most commonlocationfor admiralty salesis the FederalBuilding and Court
Houseat 222 West SeventhAvenue,Anchorage,Alaska,99513. Someattorneys
elect to have the sale at the vessel or harbor master’s ofice where the vessel is
located. If this option is elected, the travel costs, per diem expenses. and Marshals
Senix feesare deductedfrom your deposit.
C.
It is recommended to have the substitute custodian conduct an inventory of
vessels when he signs for vessels form the deputy. If the vessels is broken into
have the substitute custodian report it to the local police and send a copy of the
police report to the Court.
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USMS D/AK Samples
IN THE UNITED STATESDISTRICT COURT
FOR THE DISTRICT OF ALASKA
William B. (Bat) Materson
1
1
>
1
>
)
)
>
>
)
)
1
Plaintiff,
vs.
S/V Buffalo Gal, Official No. 000000
Her Engine,TackleandAppurtences;
Jeff (Soapy)Smith andWilliam H. Bonney
Defendants,
CaseNo. AOO-0000CIV (
)
ORDER APPOINTING
PAT GARRETT
AS SUBSTITUTECUSTODIAN
TO THE HONORABLE, THE JUDGESOF THE UNITED STATESDISTRICT COURT
FOR THE DISTRICT OF ALASKA:
Plaintiff, Matt Dillon of Dodge City, Kansas,by and through his attorney, Sam McGee,
havingappeared,now makesthe following recitals:
1. On
,
, the complainthereinwas filed prayingthat the defendant
vesselBuffalo Gal, her engines,machinery,appurtenances,
etc., be condemnedand sold to pay
plaintiffs claimsand for the otherproperrelief.
2. In the immediatefuture,the Clerk of this Court is expectedto issuea Warrantfor Arrest
of Vessel,commandingthe United StatesMarshalfor this District to arrestandtakeinto custodythe
defendantvesseland to detainthe samein his custodyuntil further order of this Court respecting
same.
SAMPLE SUBSTITUTE CUSTODIAN ORDER
Maritime
Personal
Injury/CLE
#2000-014
89
3. It is contemplated that the United StatesMarshal will seize the defendant vessel forthwith.
Custodyby the United StatesMarshalrequires services of one or more keepers at a cost exeeding
that of a substitute custodian, not including charges for moorage and the other services usually
associated with safekeeping vessels similar to the defendant vessel.
4. The defendant vessel is currently moored at Skagway, Alaska. Plaintiff is agreeable to
allow Pat Garrett of Skagway to assume the responsibility of safekeeping the defendant vessel, Pat
Garrett has consented to act as her custodian until further order of the court.
5. Pat Garrett, by certification submitted herewith and made a part hereof, avers that he can
provide for adequate maintenance and supervision for the proper safekeeping of the defendant
vessels after its arrest. He avers that the charge for these services will consist of a daily custodial
charge of $
if his services are required for not over 1 month, or $
if his services are
required for longer than 1 month, and that his the beneficiary of insurance adequate to respond in
damages for loss or injury to the defendant vessel or for damages by third parties due to any acts,
faults, or negligence by said substitute custodian or his agents. Further, in said certification
substitute custodian accepts, in accordancewith the terms of this order, possession of the defendant
vessel, her engines, machinery, appurtenances,etc., which is the subject of the action herein.
6. In consideration of the United States Marshals consent to the appointment of Pat Garrett
as substitute custodian, plaintiff and Pat Garrett agrees to release the United States and the
United States Marshal from any and all liability and responsibility arising out of the care and
custody of the defendant vessel, her engines, machinery, appurtenances, etc., from the time the
United States Marshal transfers possession of the said vessel over to said substitute custodian,
and plaintiff further agrees to hold harmless and indemnify the United States and the United
States Marshal from any and all claims whatsoever arising out of the substitute custodian’s
possession and safekeeping.
THEREFORE, IT IS ORDERED that the United States Marshal for the District of Alaska
is authorized, upon his seizure of said defendant vessel, pursuant to WARRANT FOR ARREST, to
surrender the possession thereof to Pat Garrett, as substitute custodian maned herein, and that upon
such surrender the United States Marshal shall be discharged from his duties and responsibilities for
SAMPLE
Maritime
SUBSTITUTE
Personal
CUSTODIAN
Injury/CLE
Page2
ORDER
#2000-014
90
the safekeeping of said vessel and held harmless from any and all claims whatever arising out of said
custodialservices.
IT IS FURTHER ORDERED that Pat Garrett is appointed custodian of the defendant vessel.
to retain the same in his custody for possessionand safekeeping until further order of this Court.
All
costs for custodial service and moorage charges shall be paid by plaintiff, and may, upon further
order of this Court, be deemed administrative costs herein.
IT IS FURTHER ORDERED that plaintiffs attorney serve a copy of this order on the owner
of the defendant vessel.
It is further ordered that the Clerk of this Court deliver, two certified copies of this order to
the United States Marshal forthwith.
DATED this
day of
,200-
UNITED STATESMAGISTRATE JUDGE
Approved for entry:
United States Marshal
District of Alaska
SAMPLE SUBSTITUTE
Maritime
Personal
CUSTODIAN
Injury/CLE
Page3
ORDER
#2000-014
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92
USMS D/AK Samples
1.
? UNITED STATES DISTRICT COURT
OR THE DISTRICT OF ALASKA
William B. (Bat) Materson
1
1
>
>
Plaintiff,
VS.
CaseNo. AOO-0000CIV (
)
>
1
S/V Buffalo Gal, Official No. 000000
Her Engine,TackleandAppurtences;
Jeff (Soapy)Smith andWilliam H.Bonney
Defendants,
>
>
1
>
>
ADMTRALTY
NOTICE IS HEREBY GIVEN that in obedienceto a Warrantfor Arresteddirectedto me
in the above-entitledcase,I have,on the
day of
,200-,
arrested,seized
andtakeninto my possessionthe following describeddefendantvesselSN Buffalo Gal, Official
No. 000000,and all its engines,tackle, gear,equipment,machinery,appurtenances,
etc. now
lying in Skagway,Alaska in a maritime actionset forth in the complaintseekingforeclosureof a
preferredship mortgage. The amountdemandedis $
in principal,plus interest,
attorney’sfees,disbursement,and costs.
I HEREBY GIVE NOTICE that, pursuantto Rule C(6) of the SupplementalRulesFor
CertainAdmiralty andMaritime Claims of the FederalRulesof Civil Procedure,claimsof
personsentitled to restitutionor possession
of the saidvesseland/orall its engines,tackle, gear,
electronics,bunkers,boilers,appurtenances,
etc., andapplicationsor motionsfor interventionby
SAMPLE NOTICE OF ARREST
Maritime
Personal
Injury/CLE
#2000-014
93
persons claiming maritime liens or other interests in the vessel, must be filed with the Clerk of
Court and a copy thereof served upon attorneys for plaintiff within ten (101 L_ s af%r
publication of this Notice 01 .-‘=rrest;answers to ri:z complaint, whether by
possession or seeking restitution or by those claiming any other interest in .
_ &imants
to
Groperty, must be
served and filed within twenty (20) days after date of publication of this Notice of Arrest; that as
to any person not so serving and filing his or her claim and answer, default shall be noted and
condemnation ordered; and that applications or motions for intervention in accordance with Rule
24 of the Federal Rules of Civil Procedure by persons claiming maritime liens or
in the vessel must be filed within thirty (30) days after publication of the No!;?.-
.cerests
.-~st
,md
that, as to all persons and entities not sol filing such applications or motic:. a t,..; ,:uenenuons
within the time limits set out above default will be taken . Service upon plaintiffs
attorney of
any claim, answer and/or compliant in intervention shall be made at:
(Name of Attorney)
(Address of Attorney)
day of
Dated this
,200
John R. Murphy
United States Marshal
District of Alaska
By:
Deputy U.S. Marshal
SAMPLE
Maritime
NOTICE
OF ARREST
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USMS D/AK Samples
IN THE UNITED STATESDISTRICT COURT
FOR THE DISTRICT OF ALASKA
William B. (Bat) Materson
)
)
1
)
>
)
Plaintiff,
vs.
CaseNo. AOO-0000CIV (
)
M ARREST WARRANT
S/V Buffalo Gal, Official No. 000000
Her Engine,TackleandAppurtences;
Jeff (Soapy)Smith andWilliam H. Bonney
Defendants,
TO:
THE UNITED
STATES MARSHAL
FOR THE DISTRICT
OF ALASKA
WHEREAS,an AmendedComplaintin admiraltywas filed hereinprayingthat processbe
issuedfor the arrestof the S/V Buffalo Gal, O.N. 000000.
NOW THEREFOREyou arecommandedto attachsaidDefendantvessel,with her engines,
tackle, and appurtencesand to detainthe samein your custodyuntil further order of the Court
respectingthe same. You arealsocommandedto give duenoticeto all personsandentitieshaving
an interestin the propertyunderseizureby publicationin a newspaperof generalcirculationin the
judicial district wherethe Defendantvesselwas seized.
DONE this
day of
,200o.
MIRE HALL, Clerk
BY:
Deputy Clerk
SAMPLE
marltime
IN REM ARREST WARRANT
Personal
InjurylCLE
#2000-014
95
NOTE: Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims contained
in the Federal rules of Civil Procedcr: provides: CLAIM AND ANSWER.: INTERROGATORIES.
The claimant of propzty that is tlx -.;>ject of an action b m shall file 5 &im within 10 days after
process has been executed, or wi:. :Y such additional time as may be allowed by the : ilurt. .The
claim shall be verified on oath or ~;~iemnaffirmation and shall state the interest in the l-roper-t! by
virtue of which the claimant demands its restitution and the person entitled to possession by an
agent, bailee, or attorney; it shall state that the agent, bake, or attorney is duly authorized tom make
the claim. At the time of answering the claimant shall also serve ans:~~~zsto any interrogatories
served with the complaint. In actions in rem interrogatories may be so served without leave of the
court.
SAMPLE
Maritime
IN REM ARREST W-T
Personal
InjuryKLE
Page 2
#2000-014
96
U.S. Department
of Justice
United StatesMarshalsSenrice
E
CQURT
B. (Bat) Masterson
Dm
Jeff
mm
CASE
NUMBER
AOO-0000 CIV (
)
S/V Buffalo'
Gal, Official
Number 000000, -m
in rem and WPE OF PROCESS
(Soapy) Smith & William H. Bonney, in personam
1 NAMEOFINDIVIDUAL,COMPANY,
CORKMAHON.
IZC..70 SERVE
ORDESCRIPTION
OFPROPERlY
Xl SEIZE
4
I)
Captain
Bernie
Bolton
ADDRESS(SacuarRR).~No..Ci~StucandpPcodc)
S/V Buffalo
Gal
, Skagway boat harbor
AT
SENDNOncEoFSERvI~coW~~~AfNAMEAND~Bu13w:
WV---m-w---------
r
IawvedwiththisFomt
’
--------------------INS
SPECIAL
Telephone
Signature
OR OTHER
Estinutui
Thes
Captain
c
of Attorney
or other
INFORMATION
Avaihbk
Ru
Bolton
copies
Originator
THAT
Sen’ke):
of
requesting
u, be
,Numberofpsutkstobe
1 scrvod
in this case
1 Chock
for
IOn U.S.A.
INS’lXUtXONS
Numbas,
and
dd Serve
Order
of pIocas
I
I
Sam McGee, Esq.
15 East Main Street
Skagway,
Alaska
99840
I
--------------------------------------
service
WILL
ASSlsT
IN
In Rem Warrant
on behalf
Of:
-ITT%
SERVICB
(Include
& Complaint,
m-
PLAINTIFF
~~~
0
DEFENDANT
1
service
and
Business
the
and Alranare
Subsitute
‘TELEPHONE
NUMBER
(907)
983-0000
SPACE BEIDW
FOR USE OF US. MARSHAL
I acknowkdge
receipt for the total
number of process indicated.
(Sign only tint
USh4 285 if morr
than one USM 285 is submitted)
T&lRocess
District
of Origin
District
toscrve
No. __
No. -
I hemby certify and return that I 0 have personally
served,
on the individual,
company,
coqration.
etc.. at the adI he&y
Name
certify
and title
and ~cturn
of individual
that
served
I am
(if
unable
not
0
SigIIaNIC
the individual,
company,
0
I1
DO NOT WRITE
USMS
Deputy
(compkte
only
if diffktent
than shown
BELOW
THIS
or Ckr&
LINE
Date
have executed
as shown in “RemarW.
the pmass
described
company.
corpmation.
etc., shown it the addinserted below.
corpontion.
etc..
named
above
(see
above)
0
Addms
A//
DATE
I
of Autized
have kgal evidence of service.
shown above a on the individual.
to locate
S/IOWII
ONLY -
Ad&csscs.
Custodia?
I
0
OR CONDEMN
above)
llmarks
below)
A person of suitable age and discretion then residing in the defendant’s
usual place of abode.
Date of Service
?ilnc
un
I
Setvice
Fee
Toul MileageCharges
(including
endcawrs)
Wing
Fee
TotalCharges
Advance
Deposits
Amount
owed
to U.S.
Marshal
a
Amwnt
of Refund
REMARKS:
PRIOR EDITIONS
MAY BE USED
MarltIme
NmMusH-2a5~rzasmo)
1. CLERK OF THE COURT
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InjuryKLE
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98
u.3.
uepartment
Justice
tit
UnitedStates
Marshals
Service
CWRI’
William B. (Bat) Masterson
Dm,wr
S/V Buffalo'Gal,
Official
Number 000000,
--In
Jeff
(Soapy)
Smith & William
H. Bonney,
in personam
mm
/
4
*
NAME OF INDMDIJAL.
COWANY. CORFORMlON.
ETC..lO
rem and
SERVE OR DEXRIMiON
boat
’ Nm
of paas m k
IsewadwiththisFknm-285
I
Sam McGee, Esq.
15 East Main Street
Skagway,
Alaska
99840
Numbcrofpartiestok
f~sava3inthiscasc
t
~aKckfolravicc
IOn U.S.A.
SPECIAL lN!ZRUCllONS
OR OTHER INKXMATION
THAT WILL ASSIST IN EXPEDfllNG
l&c/done Numbers. and Edmated Iii
Available k Service):
Arrest
the Buffalo
Custodian
Order in
Signature
of Attorney
OF PRWEJUY’TO SBRE OR CONDEMN
harbor
--------------------------------------
-
and Complaint
ADDRES(%cettrRRXApamuu~..ciry.Sate~zIpGdd
SENDNOnCEOFSERVI(IECOPY’ID~~ATNAMEANDADDRESSB~
--------w------e--------------------I
l-
TypEof~
In Rem Warrant
1
S/V Buffalo Gal
Skagway
AT
CASE NUMBER
AOO-0000CIV (
or other
Originator
Gal, and leave copies
the wheel house.
rtqucsting
service
on
of
bdtrlf of:
SERVICE (hrhde
Business and Akanate A&uses.
Complaint
In Rem Warrant,
and
TELEPHONE NUMBER
25 PLAlNTIFF
0 DEFENDANT
(907)
A//
Substituts
DATE
983-0000
SPACE BELOW FOR USE OF U.S. MARSHAL ONLY - DO NOT WRlTE BEJ.DW THIS LINE
I acknowledge
teceipt for the total
number of process indicated.
(Sign only first USM 285 if more
than one USM 285 is submitted)
Total
Fmccss
Diict
Disttict
of Origin
to serve
No.
No. .-
-
Signature
I hcrcby certify
and rctum that I 0 have personally
served. 0 have legal evidence of service.
on the individual.
company,
corporation.
etc., at the addtess shown above or on the individual,
0
I herrby
Name
and
certify
title
and return
of individual
that
served
I am unable
(if not
to locate
shown
the individual.
company,
of Authorized
0
USMS
Deputy
have executed as shown in “Remarks”.
the ptuccsx described
company.
corpotation.
etc.. shownit
the address inscttal below.
corporation.
etc..
r-tamed
above
f&y
above)
c]
Adhess
(complete
only
if different
than shown
rnce
or Ck&
nxna&s
A person of suitable age and disctrtian
then residing in the defendant’s
usual place of abode.
rnti of
above)
b&w)
Service
Tim
am
pn
I
Signature
of
U.S.
Ma&al
of Deputy
I
Service
Fee
Total MileageCharges
(including
endeavors)
f%twatdingFee
TbtalCharges
Advance
Depositx
Amount owed to U.S.
Matshal
Amount of Refund
or
I
REMARKS:
warltlme
FoRMusM-zBs(Rnrrulybo)
1. CLERK OF THE COURT
PRIOR
EDITION!5
MM
BE USED
Personal
Injury/CLE
#2000-014
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InjuryKLE
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100
CASE
William
w
Jeff
mm
B.
(Bat)
CIV
Buffalo‘Gal,
Official
Number 000000,
-OFPRmOrder
--in rem and
(Soapy)
Smith & William
H. Bonney,
in personam
Substitute
1 NAMEoFlNDwmuAL.coluPArw
~ON.~..~SERVEORDESCR~P~ONOFPROPEK~Y~OSUZEORCONDU(N
Pat Garrett
4
ADDRESS(SnutaRR).ApumrnrNo..CiySmreandZJP&deCodc)
I)
Miner's
Hotel
AT
\ Skagwav,
Alaska
r
COWTO
REQUESTER
AT NAME
AND
ADDREBS
BEUW
)
Appointing
SPIXIAL
Teleobonc
kld’
1
Sam McGee, Esq.
15 East Main Street
Skagway,
Alaska
99840
INS7RUCI’IONS
OR OTHER
Numbus.
and Estimated
Ti
I Numbcrofpattiestok
1 sewed in this case
I
!aeck
for mvia
; on U.S.A.
INFORMATION
Anihbk
liw
THAT
Serviak
WILL
Please
serve Pat Garrett
with copies
In Rem Warrant
of Arrest
and Complaint
Signatun
of Attornq
or other
Originatortequesting
set-via
ASSISI’
of
IN EWEDITINO
the
on behalf of:
Order
SERVICE
Total Fmccss
District
of Origin
District
to serve
15 PLAINTIFF
0 DEFENDANT
No. -
No. -
Signature
I hereby
certify
and title
and tetum
of individual
that I am unable
saved
to locate
(if not shown
Ihe individual.
company,
Substitute
TELEPHONE
NUMBER
(907)
983-0000
USMS
Deputy
(com@crc
only if diffenw
lhur
shown
Addnwes.
Custodian,
All
Md
DATE
Date
or Clerk
0 have executed as shown in “Remarks”.
the pmccss described
company. cotpmation.
etc.. shown it the addtess inserted below.
corporation.
etc..
nanlcd
ahovc
(sa
&vc)
0
Address
I
and AIrmute
Business
NOT WRITE BEIDW THIS LINE
of Authot+zcd
I hereby certify and return that I 0 have pctsonally
served. 0 have legal evidence of scrvia,
on the individual.
company. corpotation,
etc., at the address shown above or on the individual,
flncWc
Appointing
SPACE BELOW FOR USE OF US. MARSHAL ONLY-DO
I acknowledge
receipt for the Iotai
number of ptocess indicated.
(Sign only first USM 285 if m0e
than one USM 285 is submined)
Custodian
’INUlttkOfgltUCSSlObC
IsavedwiththisFutn-285
I
------------------------~-~~~---~~----
Name
(
s/V
SEND NOlICE
OF SERVICE
---------------------------m---------w
c]
NUMBER
00-0000
Masterson
abow)
lcmafks
&low)
A person of suitable age and disctetion then tcsiding in the defendant’s
usual place of abode.
Date of Scrvia
1-UlK
1111
m
Signature
Service
Fee
Total Mikage
Charges
(including
eahvnrz)
Forwarding
FCC
Total Charges
Advance
Deposits
Amount
of U.S.
owed to U.S. Marshal
or
Marshal
Atnatnt
or Deputy
of Refund
REMARKS:
prZrOR EDITXONS
MN BE USED
Maritime
ixmblusM-285(RLI~
1. CLERK OF THE COURT
Personal
Injury/CLE
#2000-014
101
This page is intentionally
Maritime
Personal
InjuryKLE
#2000-014
left blank.
102
Unitedhtes Marsnau
William
B. (Bat) Masterson
w
Buffalo'
Gal, Official
Number 000000,
--in
Smith h William
H. Bonney,
in personam
S/V
Jeff
(Soapy)
mm
/
NAME
OF INDIVIDUAL.
COMPANY.
Anchorage Daily
4
I)
CORPORATION.
ETC..
TO SBRVE
OR -ON
OF PROPERIYTO
SEIZE
OR CONDEMN
News
ADDRESS(Sbutor~.ApzrrmmtNo..i3@,SmteandzIpcodc)
1001 Northwa Drive
\ Anchorage, APaska
AT
SEND NCYIKB
GF SERVICE
-------------------------------m---m--
COPY
TD REQUESTER
AT NAME
AND
ADDRESS
’INumberofpmcesstok
I sewed with this Form
BEUIW:
I
Number
t1 servd
Sam McGee, Esq.
15 East Main Street
l-
Skagway,
Alaska
99840
SPBCIAL
~kphone
-
Notice
of Attomcy
of parties IO be
in this case
1 Ckk
for service
f on U.S.A.
INSIRUCI’IONS
OR UIHER
INFORMATION
Num&ts.
and Estim~W
‘limes Availabk
hu
Publish
- 285
I
l---------------------~~~~~-----~-~~~~~
Signature
lYPEoFPRocEss
Notice
of Arrest
rem and
of Arrest
or other Originator
THAT
Service):
WILL
ASSIST
service
SERVICB
(Include
Business
and Altcmue
A-,
A//
-rw
in accordance with
requesting
IN EXPEDITING
the Local
on behalf of:
u
PLAINTIFF
0
DEFENDANT
Rules
Admiralty
TELEPHONE
NUMBER
DATE
(907) 983-0000
I
I
SPACE BELOW FOR USE OF US. MARSHAL ONLY - DO NOT WRlTE BEIDW THIS LINE
I acknowledge
veccipt for the total
number of pmccss indicated.
(Sign only firsl USM 285 if more
than one USM 285 is submitted)
Tolnl Process
District
of Origin
District
toservc
No.
No.
I hmby certify and return that I 0 have personally
served.
on the individual,
company, corporation.
etc.. at the add0
I hmby
Name
certify
and return
and title of individual
that I am unable
saval
(if twt
0 have legal evidence of setvice.
shown above or on the individual,
to locate
shown
Signanne
the individual,
company.
of Authorized
USMS
Deputy
0 have executed as shown in ‘Remarks”.
the prmc
described
company.
corpomtion.
CIC.. shownit
the addmss id
b&w.
corporation.
etc..
named
ahovc
(see lcvnarks
above)
0
(compkte
only if diffetutt
dun shown
kc
T~MilcagcCbargcs
(including
entkavms)
Date of Service
above)
Wing
b&w)
A person of suitable age and discretion then &ding
in chc: defendant’s
usual place of abode.
Signature
Service
Date
of Clerk
Fee
T&alChargcs
Advance
fkposits
Amount
Ml
of U.S.
owed to U.S. Manhal
or
Mushrl
or Deputy
AmountofRefund
REMARKS:
PRIOR EDITIONS
MAYBEUSED
maritime
.--Personal
FoRhfusM-zAs~~
1. CLERK OF THE COURT
InjuryKLE
#2000-014
103
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Maritime
page is intentionally
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Injury/CLE
#2000-014
left blank.
104
L)epartmentof Justice
U.S.
United StatesMarshalsService
William
00-0000 CIV (
B. (Bat) Masterson
Official
Number 000000, --in rem and
S/V Buffalo'Gal,
(Soapy) Smith & William H. Bonney, in personam
Jeff
NAMEOFLNDIvIDUAL.coMpANy.coRpoRATION.~.~sERvEoR
Anchoraze
Dailv
News
SEND
NOnCE
OF
--------------------------------------
I
SERVICE
copY’T0
REQUEStER
of Sale
TO SEIZE
OR CONDEMN
AT
NAME
AND
ADDRESS
’
INumberofptocustobe
IetvcdwiththisFkmn-285
I
BEUWz
I
I
Sam IllcGee, Esq.
15 East Main Street
Skagway, Alaska
99840
‘Ott
I
INSI’RUCI’IONS
OR OTHER
Numbus.
and Estimatuf
lima
publish
Signature
Notice
DESCRlFllONOFPROPEKfY
--------------------------------------
Please
‘IYPEOFPROCESS
1001 Northway
Dri-.*e
Anchorage,
Alaska
AT
SPECIAL
Telephone
Fdd
-
>
of Attorney
Notice
~RMATION
Avaihbk
Rtr
Sale
in
of
or other Originator
nqtcsting
THAT
Setvice):
WlU
IN
EXPBDfTlNG
SERVICB
ffnc/ude
Business
and Aftmute
Addesscs.
A//
lad
-
accordance
service
ASSIST
U.S.A.
on behalf
with
of:
Local
El
PLAINTIFF
0
DEFENDANT
Admiralty
Rules.
TELEPHONE
NUMBER
(907)
983-0000
DATE
1
I
SPACE BEUlW FOR USE OF US. MARSHAL ONLY-DONOTWRITEBEI.DWTHISLtNE
Total
I acknowlaJge
receipt fur the total
number of pmccss indicated.
(Sign only first USU 285 if mmc
t/tan one USM 285 is submitted)
1 hereby certify and return that I 0 have
on the individual,
company,
corpcnation.
0
I he&y
Name
and
certify
title
and tetum
of
individual
that
served
Pmccss
District
to serve
No. -
No. ___
Signature
personally
served. 0 have legal evidence
of service.
etc., at the addtess shmvn above or on the individual.
I am unable
(if
District
of Origin
nol
to locate
shown
the
individual.
company.
of Authorkd
0
USMS
fkputy
have executed as shown in ‘Remarks”.
the proccsx described
company.
corpumtiott.
etc., shown it the nddtcss itwetted h&w.
corporation.
etc..
named
above
(See
rbovc)
0
Mdrrss
(complete
only if diffstcnt
than shown
Date
or Ckrk
remarks
below)
A person of suitable age and disfztetion then residing in the dcfettdanI’s
usual placeof abode.
oucorservicc
above)
Signature
of
In=
U.S.
I
M&l
or Deputy
I
Service
Fa3
Tbtlll
MileagcChugcs
(including
Ming
Fee
TbtalChargcs
Advance
Dqnitx
Amount
owed
to U.S.
Marshal
or
Amount
of Refund
emhvaz)
REMARKS:
PRlOR EDITIONS
MM BE USED
Maritime
mRMusx-~(BrrfMybQ)
1. CLERK OF THE COURT
Personal
InjuryKLE
#2000-014
105
This page is intentionally
Marltime
Personal
Injury/CLE
#2000-014
left blank.
106
U.S. Department of Justice
UnitedStatesMarshalsService
William
w
Jeff
COURT
S/V Buffalo'Gal,
Official
Number 000000, --In rem and
(Soapy) Smith C William 8. Bonney, in personam
mm
/
NAMEOFtNDMDLJAL.COMPANY,
AT
CCMQMJlON.
\
SPlDN(mCEOFSERVI~COW~~~ATNAMEAND~BUIM:
-----w---w-------
l-
EIc..m
SERVE
)
TYPBOFPROCESS
Order of Sale, Notice
OR DESCRIIllON
’
--------------------INumber
OF PROPEKlyTD
irctvod
of M
with-this
SEIZE
1 saved
in this
10 be
Form-285
I
I,Numberofp&stok
Sam McGee, Esq.
15 East Main Street
Skagway, Alaska 99840
of Sale
OR CONDEMN
I
case
I
‘Checkforswice
I
-------------------------------------SPECIAL
NUMBER
Federal Building and Courthouse
ADDRES(SlKU~~,,NO..ciy..dadzIpcadc)
222 W 7th Ave
Anchorage, AK 99513
4
I)
CASE
AOO-0000 CIV (
B. (Bat) Masterson
I on U.S.A.
INSTRUcllONS
GR UIHER
INFWWATION
IWAT
WILL
ASSIST
IN
BXPEDITING
SERVICE
(hcfu&
Bushcss
and ,Umutc
,4dmses,
A/I
lklkpbone Numbas. and Esthatod TunesAvaikble KN Savia):
&duct
sale of the S/V Buffalo
Court House at 2:00 P.M. on
Signature
of Attomcy
or other Originator
requesting
service
Fam
Gal at the 7th & C entrance
on behalf
TELEPHONE
Of:
(907)
DEFENDANT
SPACE BELOW FOR USE OF US. MARSHAL ONIX-DO
ToralRavss
proas
Districf
of Origin
Dii
to save
No .-
No.-
Signafum
I herrby certify and return that I [3 have pctwnally
served. 0 have legal evidence of service.
on the individual,
company,
corpontion.
etc.. at the address shown above or on chc individuxl,
0
I herrby
Name
certify
and title
and
return
of individual
that
I am unable
saved
(if
to locate
tt@ shown
the
individual.
NUMBER
(complete
only
if diffawtt
than shown
and -
DATE
company,
983-0000
NOT WRITE BELOVV THIS IJNE
of AWhorized
USMS
Deputy
of Clerk
Date
0 have executed as shown in “Remarks”.
the plac#c
described
company.
curpomtion.
etc.. xhown it the address in..
below.
corporation.
CIC..
m
above
(Set
J&WC)
lJ
Mdres.s
Building
15 PLAINTIFF
0
I acknowledge
receipt for the total
number of
indicated.
(Sign only first USM 285 if mom
than one USM 285 is submitted)
to the Federal
above)
emarks
below)
A person of suitable age and disc&on
then t&ding
in fhe &fcndanI’s
usual place of abode.
Date of Service
lime
Signature
M&l
Ml
pn
scrvicek
T&al
MilageUurges
(including
Fonvanlingk
Total Charges
Advance
Deposits
Amount
owed
to U.S.
of U.S.
Marshal
or
Amaum
of
Deputy
of Refund
urduvws)
I
REMARKS:
PiDOREDITlONS
MASIBEUSED
Marltlme
Fo_RM
IJ!M-= (Rnrm
1. CLERK OF THE COURT
Personal
InjuryKLE
#2000-014
107
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Maritime
page is intentionally
Personal
Injury/CLE
#2000-014
left blank.
108
U.S. Department cif Justice
United StatesMarshalsService
COUm
CASE
NUMBER
AOO-0000 CIV (
>
William B. (Bat) Masterson
B
S/V Buffalo-Gal,
Official
Number 000000, --in rem and mPEoFPRocEss
Jeff (Soapy) Smith & William H. Bonney, in personam
Release of Vessel
mm
f
U.S. Marshals
,
*
SON.
NAMEOFINDlVfDUAL.CQhU’AN?‘,
ElC.lD
SERVE
OR DESCRIFfION
OR CONDEMN
Service-
ADDRESS(S~~Y~R?D.A~~~~~~A~..C~~.S~Q~ZIPC~~~)
W 7th Ave #28
Anchorage, AK 99513
SENDNUTICEGFSERVICECGPYTO~UESTER
----~&k%!!?-!~~~~,
------w-w--------
\
r
I
Sam McGee, Esq.
15 East Main Street
Skagway, Alaska 99840
of pl~ccsru, h
with
this
Farm
j scrtd
I
in this case
- 2gS
!
i
Cbcck for savicc
f on U.S.A.
I,NSTRIJCITGNS
OR UIHER
INFQRMATION
Numbax.
and Esrinutod
Times Available
Jtv
Contact
NW
I saved
I
I Numbcrofparticstok
---------------------~-~-~~-----~~-~--
Signature
SEIZB
222
AT
SPECIAL
Tk$hom
-
OF PROPERTYTO
Substitute
of Attonq
Custodian
or other Originator
THAT
SC&C&:
WIIL
service
IN EXPEDITING
SERVICE
(Include
Businrss
and Al&mare
on behalf
vessel
when the Court has confirmed
of:
TELEPHONE
15 PLAINTIFF
0
AI/
the sale.
NUMBER
DATE
(907) 983-0000
DEFENDANT
SPACE BEMIW FOR USE OF US. MARSHALONI;Y-DONOTWRITEBELOWTH.ISLINE
I rknowlcdge
teceipt for the total
I”-(g$Tn
number of m
indicatal.
(Sign only titxt USM 285 if mum
d& uric USM 285 is submittal)
1
,Udrcas.
-md
to release
nqucsting
ASSIST
I:=
No.-1
1
Sigtutwc
of Authofhd
USMS
Deputy
or Clerk
Date
I
I
No .-
I kby
ccttify and tctum that I 0 have personally
served. 0 have legal evidence of setvice. 0 have executed as shown in “Remarks”.
the pmcus described
on the individual.
company, corporuion.
etc., 8t the 8ddm.s shown above or on the individual.
company. corporation.
etc., shown ht the address hcttcd
below,
0
f bby
Name
mrify
and title
and return
of individual
that I am unable
served
to locate
(if nut shown
the individual.
company.
corpomtion,
etc..
named
&JIIC
fk
&we)
0
Actdress
(contpk&
only
if diffmnr
dun s/town
above)
m&x
alow)
A person of suitable age and discrction then residing in the defendant’s
usual place of abode.
Date of Service
lhc
ant
Signature
Marshal
pa
sclviccF&
TiXd MileagcCh8rgcs
(including
endawws)
Famnling
kc
ToCrlChatges
Advure
Depositx
Amount
owed
of U.S.
I
to U.S. Marshal
ar
Amount
or Deputy
ofRefund
REMARKS:
PRIOR EDITIONS
MN BE USED
Maritime
mRMIJ!sM~~~
1. CLERK OF THE COURT
Personal
Injury/CLE
#2000-014
109
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Maritime
page is intentionally
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Injury/CLE
#2000-014
left blank.
110
Transmittal
$heet
MARSH
October 16,200O
D8tc:
To:
, Cornpray:
PagCS&thtovu:5
Fax (907)2713674
IindaKlcmm
united st8tes Marshals service- Diict ofAlask8
From:
ChristiaaKwok
Subject:
United St&es Marshal Port Risk Legd LibPoWHJPSFBF9lHl&
JRJPSFB91H2
Fur&ha to cm t&phone cone
this nwniag the ahovetwo policies arc currently iu &ixt
and covcmgc begins automatically [under both policies] whca the U.S. Mar&Is seizes the
vtSSCYS)c4mccmed. The policies arc legal liability for tbc marsh& and/or aWodians only and
arenot any kind of physical damagepolicy.
Hat is a brief synctpsysofthe policies:
Of the two policies; the fint coverstheliabi&y of the United Statesof Ameka andthe United
StaresMarshal, the secondcoversliability of&c AppointedCustodianwhile the vesselis ia their
m custodyad coatrol.
0
Policy No. J&WP-SFB 9lH1- U. S. MarshalPort Risk Legal Liability
0
Policy No. J&IMP-SFB 9lH2 - AppointedCusWan Port Risk Legal Liability
‘IbcrcarcfourscparattcustodiansiarstiaasundcrwhichundcnvritenwillrrspondtoArsurcdsif
they arc legally liable:
4)
MarshalseizesavcsselandtheCourtappoin&asubstitutecustodianwho
iudcmuifics the U. S. Mar&al S&ice againstall liabilities arising out of such
-Y.
MarUs my bcgiu pticipation in tbc Marshprogramanytime; p&ixably ou the frnt of the
month. wuageisautomatic.
Limits of Liability
The amountOfinsuraudi
ofliability beginsat S250,OOO
andgraduatesto S30,000,000.
~~limitsartaMilablebutmustbcapprovedbyundtrwriten.
Limitsarcdctumincdona
casebycasebasir;howevu,
the DepartmentofJusticerecommendsand most districts are.
-sAhlrLDOC
Marltlme
Personal
Injury/CLE
#2000-014
111
.
n#tolcscvccalpOliCywMantitstOWbiCbtbCManhlmust8dh~C:
I).& discussedabove,Samity GuardAgcuciu andCourt Appoiitcd Custodiansmust
provide~tvidcDccOf~
totheu.s.M8rshalsavicectfbe
dc&rcdlmderthcscpuatt~pdicyJ~JPSFB91H2
2) Movements in excessof25 miles ofvesselsbetweenportsare ~3 awesed at
additionalpruniurnbutmustbcapprovedbyundcrwritcrs. Vcssclscnubcmoved
only undercourt orderoxcqt to prcwt or lcsscna loss.Movements under25
milcsncedn~bcrcpoxtai. lhcsamcappiiestocafgo.
3) Unduwriters’ prior appfoml i8 raptid for insuringvesselscarrying hatudous cargo
a3definedby U. S. CoastGuardrcgulatiofu or 6orinsuringthe cargoitself.
4) Limit0 in excea~of SlO,OOO,OOO
andnot exceedingS30,000,000nquire a CNMMOII
and valuation survey of vase& cargo, crrw and passengersfil i.: - .-Q
performed at Assured’s expenrc
For coverageofexceedingeven Qy8, undenvriters’approval
must be
obtain&w
Hope this is belphl. I~YOUhsrvt furtfitr qucrtions,pleasecontactVeit Metzrotb at
(415) 7458509.
WW&
---.
Maritime
Personal
Injury/CLE
#2000-014
112
- --
VESSEL INVENTORY
Substitute
TEL #
Custodian
Attorney:
TEL #
Case Number:
Date
Vessel
Official
Name:
Width:
Length:
Location
of
Description
GET
of
Inventory:
Number:
Est
Value:
Vessel:
of
Vessel:
HANUFACTURER.liNUMBERS.-=
ORY -R
POSSIBLB,
Lorans
A:
Printer:
Loran
B:
Printer:
Depth
Finder:
Printer:
Radar:
Stations:
Compass:
Auto
Marltime
Personal
Injury/CLE
Printer:
Pilot:
Steering:
#2000-014
113
CB:
FAX EQUIPMENT:
SHIP
TO SHORE:
OTHER:
RADIOS,
CASSETTE PLAYER,
COMPACT DISCS,
SHORTWAVE RADIOS:
MAPS/CHARTS:
SURVIVAL
SUITS:
RADAR HEADS:
2
maritime
Personal
InjuryKLE
#2000-014
114
RADIO ANTENNA:
LIFE
RAFTS:
STEERING
STATION:
OTHER EQUIPMENT:
OUBBTBBS,.
RADIO/CD/CASSETTES:
PERSONAL GEAR:
BUNKS:
OTHER:
RADIO/CD/CASSETTES:
PERSONAL GEAR:
BUNKS:
OTHER:
3
Maritime
Personal
InjuryKLE
#2000-014
115
REFRIGERATORS/COOLERS:
MICROWAVE:
SHIP
STORES:
ENGINE
ROOM,.
MAIN ENGINES:
AUX.
ENGINES:
GENERATORS:
SHIPS
TOOLS:
4
Maritime
Personal
Injury/CLE
f/2000-014
116
TYPE OF GEAR:
CRAB BLOCKS:
POT LAUNCHERS:
KING HAULER:
NETS:
HYDRAULICS:
WINCHES:
MISC GEAR:
5
Marltime
Personal
Injury/CLE
#2000-014
117
SMALL BOATS/ENGINES:
FIRE
EXTINGUISHER:
LIFE
VESTS:
SURVIVAL
SUITS:
_.-
VAPOR LIGHTS:
6
Maritime
Personal
InjuryKLE
#2000-014
118
._