Limitless punitive damagesJudgement on willful failure

Maintenance & CureMandatory yet difficult to define

Man overboardPreparedness is the key

US Bodily Injury NewsMAY 2012

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Maintenance & Cure 3

To ease without curing 5

No limit on punitive damages 7

Unearned wages 9

Parting mooring lines 11

Man overboard 13

Welcome to this early summer edition of the Bodily Injury News-letter which places particular emphasis on ‘maintenance and cure’.The breadth of exposure through this avenue of claim is not widelyunderstood. The seemingly limitless potential for punitive damageswhere owners fail to pay maintenance and cure, is explored as isthe trend towards palliative treatment which raises the prospect ofa continued cost for owners. Recent issues and developmentsarising from crew injury through falling overboard and partingmooring lines are also reviewed.

Further information on these topics and the issues raised can beobtained from the authors whose contact details can be found onthe back page. As always we welcome your feedback on the topicswe cover in our newsletter and suggestions for future topics.

Save the dateThe 20th and 21st September should be set aside for those whowish to join us at our Bodily Injury Seminar, here in New Jersey.Always an extremely popular event, the seminar combines someexpert instruction with engaging and practical hands-on casestudies and workshops.

This year we expect the event to be even better. We will be reviewinggood practice vs. bad practice in public relations following a majorincident and also how to preserve privilege in such circumstances.We have prepared a unique case study that will give participantsa “fly on the wall” perspective on the inner workings of courtprocess and reveal some of the assumptions and misconceptionsthat may influence outcomes on cases going before juries.

As always there will be a combination of external speakers andThomas Miller Americas executives to guide debate and give fullopportunity to Members to share their own expertise and experience.

If you wish to attend the seminar, please get in touch with your usualTMA contact. Members outside the Americas region shouldcontact myself or Louise Livingston in the TMA San Franciscooffice (louise.livingston@thomasmiller.com) to arrange a place.

Welcome Noreen ArraldeNoreen joined the TMA New Jersey claims team in March.Previously Noreen practiced law for thirteen years as a partner ina New York litigation firm specialising in maritime law. Noreenhas tried many cases to verdict in federal and state courts andargued appeals to the Second Circuit. She otained her Juris Doctormagna cum laude from St Johns University School of Law. Between1993-1999 Noreen was Manager of P&I claims for a well knownglobal container operator.

Noreen will be handling both P&I and Defence claims and is amember of the TMA Bodily Injury Team. We look forward tointroducing Noreen to our Members and business partners over thecoming months and drawing on her practical experience as atrial attorney.

Mike JarrettPresident & CEO Thomas Miller (Americas) Inc. Direct Line: +1 201 557 7343

Mike joined Thomas Miller in 1980with a law degree and managedone of the London syndicatesbefore moving to America in 1993.

CONTENTS

US Bodily Injury News

The TMA Bodily Injury newsletterenables a wider sharing of the Team’sexpertise and experience. We alwayswelcome your feedback on the topics we cover in these newsletters. Sugges-tions for subjects for future coverage arealso particularly welcome. Please sendyour comments or suggestions to Louiseat louise.livingston@thomasmiller.com

Further information on these topics canbe obtained directly from the TMABodily Injury Team (see back cover for contact details).

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The maintenance and cure duty arises when a sea-man becomes ill, injured or incapacitated or whosecondition becomes aggravated or enhanced for anyreason. A seaman receiving maintenance and curefor an injury or illness is deemed to still be in theservice of the vessel until he is found at maximummedical improvement. If he manifests a secondinjury or illness while receiving maintenance andcure, he is entitled to maintenance and cure forthe second condition even if unrelated to theoriginal injury or illness.

Claudia Duarte was a seaman receiving maintenanceand cure for a shipboard accident. While undergoingmedical treatment she was involved in a car accidentand was injured. The courts held that as Duarte wasreceiving maintenance and cure at the time of thecar accident and was not at maximum medicalimprovement, she was still in the service of the shipand entitled to maintenance and cure for the injuriessustained in the car accident.

Brassea was hired as a fisherman aboard the M/VDAPHNE for the salmon season in Alaska. He suffereda hernia lifting a 12 gallon gas tank. While havingsurgery to repair the hernia, the surgeon found andrepaired a second unrelated hernia caused by surgeryBrassea had as an infant fifty years before. The ship-

owner paid for the first hernia, but not the secondhernia. The court held the shipowner must pay forboth hernias as the injuries manifested themselveswhile he was in the service of the vessel. Causationof the injuries is irrelevant.

In an example of “what can possibly go wrong “,Gauthier injured his groin while working as aseaman. He received maintenance and cure andrecovered well enough to go to work for anothercompany. He aggravated the original injury whichnow needed surgery to repair. While he was inthe hospital awaiting the surgery, tests revealedGauthier had multiple blockages in the arteries tothe heart and had to have heart bypass surgery. While he was recovering from the heart surgery,and before he could have the groin surgery, hedeveloped hepatitis. The court found the shipownerwas on the hook for maintenance and cure includingthe costs of all three injuries and illnesses as hewas still in the service of the ship.

Seaman Messier hurt his back falling off a shipboardladder. He went to his primary care physician fortreatment. The doctor ordered standard blood tests.Messier’s back problem cleared up in a few days butthe results of his blood tests revealed high creatinelevels, which continued to rise. He was eventuallyhospitalized for kidney failure and a stent put inone of his kidneys.

After further testing Messier was discovered to besuffering from B-cell lymphoma and underwentchemotherapy and radiation treatments. After tenmonths he went back to work. He brought suitclaiming he was entitled to maintenance and curefor the entire ten months and the cost of the medicalcare because his illness manifested itself while hewas in the service of the vessel. The problem forMessier was he did not put in for maintenance and

Karen C. Hildebrandt Vice-President

Maintenance and cureYour crewmember sustains a back injury when he slips and falls down a stairwellon the vessel. He is sent home to receive medical treatment. While he is home hedevelops an abscessed tooth and incurs thousands of dollars in dental surgeryand care. Do you have to pay for his teeth as well as his back?

If he is an American seaman and/or you are a US based shipowner, yes you do.

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cure at the time of his original back injury becauseit resolved itself so quickly and therefore he was notin the service of the vessel during his illness. Thecourt denied his claim for maintenance and cure.

Crewmember Smith fell off a ladder in the engineroom and was evacuated to a shore-side hospital.Blood tests revealed he had lymphoma and the shipowner was obligated to pay for treatment until hewas at maximum medical improvement (he thensued the employer and several other employersalleging exposure to chemicals caused his illness)

Crewmember Jones, a known diabetic, was foundon the floor in the engine room. He was treated forhis diabetes until he could be evacuated from the ship.Shore-side medical tests showed he had an arterialvenous malformation (AVM) in the temporal lobe ofhis brain. The member was obligated to treat the pre-existing, congenital malformation with Gamma Knifesurgery and provide maintenance and cure for thethree year post operative follow-up period.

The Club has had many similar experiences withseamen suffering from additional injuries or illnesseswhile out on maintenance and cure. We recommendyou take the following steps to minimize yourexposure to the costs of subsequent unrelatedmedical care:

- Have a thorough PEME performed BEFOREthe crewmember sails. Though a PEME willnot catch all pre-existing conditions, if a crew-member is untruthful as to declaring pre-existingconditions it may relieve the shipowner fromthe maintenance and cure obligation.

- Take an aggressive approach to treating themedical condition or injury to get the seamanat maximum medical improvement beforeanother problem can develop.

Pre-Employment MedicalExaminations for seafarers

The UK Club offers the best established PEMEscheme. In its fourteen years of experience over250,000 examinations have been completed todate at 43 clinics in fourteen countries.

As a loss prevention initiative the scheme aimsto reduce the volume, and value, of illness andrepatriation claims which relate to pre-existingmedical conditions. It uses an enhanced medicalexamination based on a recognised maritimestandard and implemented by our approvedclinic network operating in major areas of crewrecruitment.

Each member who joins the PEME programmeis assured our approved clinics are stringentlyvetted and regularly audited by the Club forquality and integrity.

Medical examination fees vary depending onthe area of recruitment for example in thePhilippines the medical costs approx US$90 -US$112 based on content.

The Club pays the examination fee direct to theclinic and members are subsequently debitedfor recovery of costs on a quarterly basis. Anadministration fee is charged for non-UK Clubfleets, but the service is free for Club members.

Whilst the key benefit is a reduced frequencyand volume of crew illness claims, participatingmembers enjoy the competitive prices securedby the Club as a major purchaser of medicalservices and avoid the housekeeping tasks ofauthenticating and administering the examinationarrangements.

More information on the scheme can be foundon our website atwww.ukpandi.com/loss-prevention/peme or bycontacting one of the TMA Bodily Injury team.

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To Ease Without CuringLimits on Maintenance and Cure become more difficult to define with the medicalcommunity’s increasing reliance on palliative treatment

1 According to Diane E. Meier, MD, Director of the Center to Advance Palliative Care, a national organization based at New York City'sMount Sinai School of Medicine

Noreen D. ArraldeClaims executive

Patient X is a 59 year old seaman with a history ofkidney disease. Recently while working as a wiper,he began to experience fatigue, shortness of breathand swelling of the feet and hands. He was takento the hospital, where treatment for kidney failurelikely saved his life. He is now undergoing dialysis.

The shipowner asks, “What is our maintenance andcure obligation to this seaman?” Good question.

A shipowner is obligated to provide maintenanceand cure until such time as an ill or injured seamanis fit for duty or reaches maximum medical cure. A seaman reaches maximum medical improvementwhen the condition will not improve with additionalmedical treatment. The fact that a seaman continuesto receive palliative treatment does not entitle himor her further maintenance and cure if the conditionwill not improve.

Patient Y is a 30 year old seaman with no medicalhistory to speak of. Recently while working as a cook,she had several unexplained falls and also reportedfeeling fatigue, cold, and numbness. She was takento the hospital and diagnosed with multiple sclerosis.Her symptoms now appear sporadically withoutwarning. Sometimes, her symptoms clear completely,sometimes not. Her doctor wants to put her on a newdrug which may slow or even reverse the MS symptoms.

Once again, the shipowner asks, “What is ourmaintenance and cure obligation in this circumstance?”

Palliative care is an increasingly popular approachto treating permanently ill or injured patients.Although not new (palliative care has been aroundfor more than 30 years), the number of providersoffering palliative care to their patients has morethan doubled since 2000.1 The explosion of palliativecare programs poses a quandary for shipowners.While palliative care, which focuses on pain andsymptom management, can improve the patient’scomfort and quality of life, must the shipownerpay for it?

Patient Z is a 42 year old deck officer who sustaineda permanent brain injury. He suffers from cognitivedeficits and muscle spasms. He recently startedseeing a doctor who wants to start him on a newrehabilitation regimen which the doctor believesmay lessen the muscle spasms and could result insome cognitive improvement, although there is nochance he will ever return to the same condition asbefore the accident.

Once more, the shipowner asks, “What is our whichour maintenance and cure obligation?”

More than sixty years ago, the United States SupremeCourt said that shipowners were not required topay for palliative care under the maintenance andcure obligation. With the medical community’semphasis today on quality of life care, determiningwhether a recommended course of treatment isconsidered palliative and when it is consideredcurative can be difficult for shipowners and thecosts of getting it wrong can be punitive.

In cases similar to the three described above, courtswere asked to decide what shipowners were requiredto pay under the maintenance and cure obligation.In the case of Patient X, the court held that theshipowner was required to pay for dialysis treatment.The court noted dialysis treatment did more thanjust relieve the symptoms of kidney failure, it allowedthe seaman to live a normal life. In the case ofPatient Y, the court held that the shipowner was

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not required to pay for the new drug which mayslow or even reverse symptoms of MS. The courtsaid, “slowing or arresting a decline, while medicallyimportant, simply is not the same as effecting animprovement.”

In the case of Patient Z, the court held that theshipowner was required to pay for further re-habilitation, noting that the treatment was notmerely intended to slow or even reverse symptoms,but to improve the condition itself.

These cases illustrate that the concept of “cure”means an improvement, or the possibility of animprovement, in the seaman’s underlying condition.Treatments directed only to symptoms, with noprospect of curing the underlying medical condition,are generally not considered part of a shipowner’scure obligation.

Subjective complaints of pain can be among the mosttroublesome for doctors to treat and in many instances,palliative treatment will be offered. When thetreatment offers some prospect of improving theunderlying condition causing the pain, courtsconsider that treatment curative and require theshipowner to pay for it. However, when there is noprospect of improving the underlying conditionand the treatment is offered simply to manage thesymptoms of an incurable condition, generally theshipowner should not have to pay for it under itsmaintenance and cure obligation.

The distinction can be difficult for a shipowner todiscern. For example, in one case, the court held the shipowner was not required to pay for treatment which was intended to relieve discogenic low backpain because the treatment would not, accordingto the seaman’s doctor, improve the underlyingcondition which the doctor said was caused byirritation of nerve fibers. In another case, the courtheld the shipowner may be required to pay fortreatment which was intended to relieve low backpain caused by degenerative disc disease.

In both cases, the condition was considered by theseamen’s doctors to be “permanent.” The differencebetween the two cases was the fact that the seaman’sdoctor in the latter case (degenerative disc disease)said the treatment he suggested may improve theunderlying condition causing the pain, whereinthe doctor in the former case (discogenic backpain) said his treatment was not aimed at improvingthe underlying condition (which the doctor saidwas incurable), but could reduce the pain causedby it.

The decision to deny a claim for cure should alwaysbe made with great caution. Difficult decisionsregarding the limits of maintenance and cure shouldalways be discussed with the Club. We find thesedecisions can be made less daunting with the helpof competent medical case managers.

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On March 15, 2012, the Washington State SupremeCourt gave shipowners a very good reason to ensuretimely and fair payment of maintenance and cure toinjured seamen.

In Clausen v. Icicle Seafoods, Inc., the court heldthat a jury’s ability to award punitive damages forthe shipowner’s willful failure to pay maintenanceand cure is not limited to the 1:1 ratio of punitiveto compensatory damages that the US Supreme

Court found applicable in Exxon Shipping v. Baker,554 U.S. 471 (2008). 1 The Washington SupremeCourt described the facts in the case as follows.

Dana Clausen sustained an injury to his lower back,neck and hand while lifting a heavy piece of steelaboard the F/V BERING STAR in February of 2006.He was sent home for medical treatment. In themonths following his accident, Clausen had “persistentdifficulties” getting Icicle and its adjusting firm to payhis maintenance and cure. In May, the adjusterconfirmed to Icicle that Clausen’s injuries were likelycareer ending and recommended that Icicle settlewith Clausen before he obtained legal representation.

However, a June 2006 letter from Clausen’s doctorto Icicle recommended further treatment and possiblespinal surgery. Clausen was never told about theletter. In September of 2007, Icicle filed suit infederal court against Clausen to terminate mainten-ance and cure, alleging that Clausen had impededtheir ability to investigate his claim. In the courseof defending against Icicle’s claims, Clausen learnedthat Icicle had in fact closely monitored his condition.

Clausen obtained counsel and filed his own suit instate court alleging Jones Act negligence, unseaworth-iness, and wrongful withholding of maintenance andcure. The jury found that Icicle had been negligentand awarded Clausen $453,100 in damages for hisinjuries. They also found that Icicle was willful or

No limit on punitive damages inWashington State Court for willfulfailure to pay maintenance and cureUnder US federal maritime law, a seaman who is injured or becomes ill while in the

service of a ship is entitled to receive “maintenance and cure” from the shipowner

regardless of causation or fault. Maintenance is a daily subsistence allowance paid to

the seaman during the period of his recovery to cover room and board. Cure refers to

the cost of the seaman’s medical treatment. Both must be paid by the shipowner until

the seaman has reached maximum medical improvement.

Molly Henry (Associate)

Keesal Young & Logan

Molly is a graduate of Smith College. She earned herJ.D. degree in 2008 from the Ohio State UniversityMoritz College of Law, where she graduated summacum laude and was nominated to the Order of theCoif. Molly’s practice focuses on maritime litigation.Email: molly.henry@kyl.com

1 The Due Process clause of the United States’ Constitution provides the upper limit on the amount of punitive damages that can be awardedagainst a party. Icicle never argued that the punitive damages award at issue violated Due Process. Therefore, this case did not test the upperlimit of permissible punitive damages. A number of state laws provide for an upper limit ratio of 3:1 punitive to compensatory damages, but here thepunitive damages were less than 3:1 to the compensatory damages (inclusive of attorney’s fees), so that limit was similarly not implicated.

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wanton in its failure to pay maintenance and cure,and awarded Clausen an additional $37,420 incompensatory damages and $1.3 million in punitivedamages on that issue.

In a post-trial motion before the judge, Clausenrequested attorney’s fees. Icicle opposed the motionon the grounds that only a jury can award attorney’sfees as punitive damages. The court grantedClausen’s motion, but only as to fees incurred onhis maintenance and cure claim, which the courtfound amounted to 90 per cent of the total fees heincurred. The court found that attorney’s fees onClausen’s claim for willful or wanton failure to paymaintenance and cure were compensatory damages,not punitive. Icicle appealed.

The Washington Supreme Court addressed twoquestions of federal maritime law on appeal:

(1) whether the court, and not the jury, determinesthe amount of attorney’s fees related to a jury’saward of punitive damages for the willful failureto pay maintenance and cure; and

(2) whether punitive damages for the willful failureto pay maintenance and cure must be capped at aratio of 1:1 to the compensatory damages.

As to the first question, the court held that attorney’sfees in the context of a claim for maintenance andcure are compensatory, not punitive, even thoughthey are only available where a jury finds the ship-owner’s denial of maintenance and cure was “callousor willful.” This is because an award of attorney’sfees is necessary to make the plaintiff whole followinga successful claim for maintenance and cure.

Since the fee recovery is not part of the plaintiff ’ssubstantive claim for damages, the court reasonedthat it “makes procedural sense” to have that issuedecided post-trial by the judge.

Next, the court turned to the question of whethera jury’s award of punitive damages for a willfulfailure to provide maintenance and cure should becapped. Icicle argued that Exxon Shipping Co. v.Baker, 554 U.S. 471 (2008), required the court tocap the jury’s punitive damages at a 1:1 ratio tothe compensatory damages. The court disagreed.

The court stressed that the goal of punitivedamages is to punish egregious behavior and todeter similar conduct. The court did not read

Exxon as establishing a broad, general rule undermaritime law limiting punitive damages. To thecontrary, the court read Exxon as approving of avariable punitive damages scale based on thewrongdoer’s level of culpability. The conduct atissue in Exxon was not “at the extreme end of thescale of egregiousness,” there was no profit motive,and there was already a substantial recovery forcompensatory damages. Accordingly, it madesense to limit the punitive damages award to a 1:1 ratio to compensatory damages in that case.

On the other hand, the court found that Icicle’sconduct was “egregious.” Specifically, the courtnoted that Icicle intentionally disregarded Clausen’shealth by refusing to pay for treatments recommendedby Icicle’s own “hand-picked” doctor, provided only$20 per day in maintenance while knowing thatClausen was “practically homeless,” made false state-ments in its federal complaint seeking to terminateClausen’s maintenance and cure, and was motivatedby profit.

Finally, the court found that the sizeable amountof punitive damages awarded was appropriatebecause it was necessary to substantially deterIcicle from treating other seamen as it treatedClausen. The court therefore upheld the jury’saward of $1.3 million in punitive damages.

Since Clausen v. Icicle Seafoods, Inc. is a Washingtonstate decision interpreting federal maritime law, itis only binding law in Washington state courts.Nevertheless, it serves as an important reminder toshipowners to err on the side of caution whendeciding issues related to maintenance and cure.

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It has long been the law that a seaman who falls sickor is injured in the service of the ship is entitled towages through to the end of the voyage, the length ofwhich is usually determined by the articles andcollective bargaining agreements. The Circuit Courtopinions vary. Some have described the end of thevoyage as “when the ship arrived at her last portof destination” or “when the cargo is discharged”.

On the Great Lakes it is a longstanding custom topay unearned wages only on a trip from loadingport to unloading port or vice versa. For foreignvoyages, the seaman is customarily bound for asingle voyage, and not a definite period of time.

On coastwise voyages, where articles are commonlyentered into for a period of time that encompassmultiple short voyages, the seaman is entitled tounearned wages for the “period of employment.”Courts have held that the period of employmentis the entire period of time contemplated by thecontract when the seaman’s illness or injury has notreached the maximum medical improvement atthe expiration of that period.

But what if the articles do not contain a definiteterm of employment or they were never signed?What determines the length of the voyage then?The burden is on the seaman to show a definite

period of employment. If the articles are unclearor there are no articles, courts will generally lookto the intent of the parties as expressed in collectivebargaining agreements. “Opt-out” clauses, whereeither the seaman or the employer can terminatethe seaman’s employment with only a short noticeperiod, tend to show that there was no definiteterm of employment – and therefore unearnedwages would cease at the end of the voyage.

However, other clauses in a collective bargainingagreement which may make a period of servicemandatory for certain crew positions can overridethe “opt-out” language. In one such case, a courtfound that an injured seaman who, after his injuryaboard the ship, later accepted some other limitedtemporary employment during the remainder of his90-day mandatory service period, was not precludedas a matter of law from receiving unearned wagesfrom the original employer.

The court held that this was because the seamanwas entitled to the unearned wages under thecollective bargaining agreement terms (althoughthe court held he could not “double-dip” and receiveunearned wages for the time he was actually engagedin the temporary employment). In short, employersmust make sure the collective bargaining agreementsare consistent throughout (and that they don’tconflict with the terms of the ship’s articles, ifarticles have been signed).

Overtime, tips & vacation payAs a matter of law, overtime pay is factored intounearned wage calculations for the purposes of aninjured seaman’s compensation to the extent it isreadily ascertainable. In other words, a seaman is notentitled to overtime pay when the actual earningof overtime is an event which might or might notoccur. If overtime wages are part of the collectivebargaining agreement, this inclusion serves to providea level of certainty that will survive judicial scrutiny.

Unearned wages as an element ofseaman’s damages: End of the voyagevs period of employment

Markus McMillin Claims executive

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Absent the clear terms of a collective bargainingagreement, courts also look to the custom, practice,and expectation of the parties that a seaman wouldreceive certain benefits as compensation during hisservice aboard the ship in order to place the seamanin the same position he would have been in had hecontinued to work. If there was a custom andpractice of paying overtime wages, then the injuredseaman is probably entitled to them for the remainderof the voyage or the term of his employment.

Courts have extended this reasoning to tips andvacation pay as well. As those benefits are directlyattributable to the seaman’s work aboard the shipand an inherent part of his wage agreement, theseaman is entitled to them.

If employers want certainty with regard to paymentof unearned wages for injured seaman ensure that thearticles and collective bargaining agreement clearlyand consistently state the terms of employment. Also,employers should be prepared to pay overtime, tipsand vacation pay to an injured seaman if those areitems of compensation the seaman would regularlyearn under normal working conditions.

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In 2011 a 24-year-old ordinary seaman was one of a five-member forward mooring team (ChiefOfficer, Bosun, a trainee, a cadet, and ordinaryseaman) when their container ship was berthing.After the mooring lines had been secured ashore,the vessel was required to shift 10 meters astern.During this movement the headline parted underthe tension and the ordinary seaman was struckon the head and neck. He died instantly.

Several factors could have prevented this fatality;mainly consistent inspection of lines and replace-ment of ageing lines. However there are a varietyof other factors that offer further safety protectionwhen mooring, when practised consistently.

In the above incident only the Chief Officer and theBosun were experienced seafarers on the mooringteam. The ordinary seaman, cadet and engine traineewere forward, while the Bosun handled the winchcontrols facing aft with the three inexperiencedcrew behind him. The Chief Officer was on thestarboard observation platform with an obstructedview of the area on the port bow where the ordinaryseaman stood. Therefore the only persons observingthe bow lines’ movement and tautness were thethree inexperienced crewmembers. They lacked

the experience to know how the lines would reactto the tension as the vessel shifted and were unsuper-vised. Familiarity - through supervised experience- with mooring lines results in the crew making safeand effective decisions during mooring operations.Some rules for mooring personnel follow:

Proper maintenance of the mooring lines andequipment are of utmost importance and canprevent injuries and deaths. The line that partedin the example above had been inspected asrequired, but was cropped and spliced twice inexcessively worn areas, when replacement wouldhave been preferable.

Ship owners should keep records indicating whenlines were bought, when put into service, and detailsof line inspections. Manufacturers’ pamphlets

Parting mooring lines: Crew error or equipment failure – expensive tragediesThe crack of a parting mooring line while maneuvering a ship to a berth is the sound of adeadly weapon, giving anyone in its path little or no time to escape. Major accidentsinvolving mooring procedures can cause fatal or life-threatening injuries to seafarers,longshore workers, and anyone working on or near a ship. These claims are some of themost expensive injury cases handled by the Club, due to the severity of the injuries.

Linda Wright Claims executive • Avoid standing in bights or snap back zones

• Safety meeting prior to mooring operations

• All inexperienced personnel should be underthe direct supervision of experiencedseafarers

• Crewmembers not involved in mooringoperations should remain well away frommooring stations during berthing/departure

• Supervisors of mooring procedures are alsoinvolved in operations, so attention may bedivided – stay aware, stay focused

• Consistent visual inspection of lines before,during, and after each use and before theyare stowed

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suggesting maintenance and care of the productoften include safety suggestions about that particulartype of line. The following is a list of necessarymaintenance inspections/conditions of lines andequipment recommended for loss prevention:

• Fully non-skid decks – in recent years it hasbecome apparent to the Club that non-skiddecks are beneficial to the reduction of incidents

• Annual brake tests on winches

• Snap-back zones clearly marked on deck

• Warning signs posted

• Mooring lines kept on drum ends or onpallets –not on wet or sunny deck

• Fairleads and rollers free and regularly greased

• Ropes made up to bitts correctly

• All grease nipples on deck equipment checkedto ensure usability

• Wasting metal parts on equipment should bereplaced NOT painted over

• Highlights of tripping hazards painted on deck

• Correct stoppers used – rope to rope and chainto wire

• Documented line inspection, retirement,replacement policy

All working lines on deck offer similar hazards tothe mooring team. The Club was involved in a casein which a crewmember’s foot became caught in atug’s messenger line when the ship was letting go.His foot was amputated by the line as it becametaut. Hand and arm injuries can also result whenpersonnel do not focus on the movement of line

during mooring operations when the lines can becaught up in other ropes or wires, slip off or becomejammed on equipment. Trained deck crews under-stand the dangers of bights and line handling, yetcomplacency or inattention contribute to ongoingincidents.

Immediate notification of a mooring line accidentallows the Club to assist the Member conduct animmediate and thorough investigation of theincident to determine the cause and legal liabilityof the Member and secure any evidence involvedin the incident. After providing medical attentionto any injured parties, the area should be immediatelycordoned off to preserve the accident site and theequipment as it was at the time of the accident.Sections of the line on each side of the break shouldbe secured to allow for later testing to determinethe cause, if possible.

The catastrophic results of mooring incidents if notfatal are often near-amputation of limbs, severe heador brain injury, and paralysis from spinal cord injuries.Though the occurrences cannot be eliminatedentirely, training of all personnel to familiarizethem with safe mooring practices and consistentlyfollowing maintenance guidelines for mooringequipment can reduce such tragedies. Routinesafety meetings or job safety analyses prior to allmooring operations will reinforce the hazards andhow to avoid them, even for the experienced sea-farer, who may become complacent and not payproper attention to the operation.

The Club has several publications regarding theassessment of mooring incidents by its Loss Prev-ention Team and the Bodily Injury Team on thewebsite, ukpandi.com, which is available to allMembers.

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Falling overboard is one of the most dangerousand life-threatening things that can happen at sea.This is especially so from a large vessel that is slowto maneuver. The man overboard situation oftencreates chaos and confusion aboard ship. But thereare special procedures in place for dealing withsuch emergencies. Man overboard is a criticalsituation and steps need to be taken immediatelyby the master and crew to rescue the person inthe water.

The purpose of this article is to provide somerecommendations concerning how to minimizethe owner’s potential legal exposure in the mostcommon man overboard situations. In the Club’sexperience, the three most common man overboardsituations are the following:

1) a crewmember has gone missing and is presumedto have fallen overboard;

2) a man overboard incident is witnessed, an alertis sounded immediately and the person in thewater is rescued; and

3) a man overboard incident is witnessed, but theperson in the water is not rescued for any numberof reasons and the person’s remains may or maynot be recovered.

Each of these scenarios presents its own uniquechallenges.

Preservation of RecordsNo matter which man overboard scenario presentsitself, the master should ensure that the ship’s manoverboard protocol is followed. Periodically reviewingthe man overboard protocol is essential. Once theemergency has passed, prompt steps should be takento preserve all relevant ship documents and records.What documents and records may be relevant to theman overboard incident should be viewed broadly.It will surely include charts, logs, VTS data, emailsto and from the ship regarding the incident, recordsof safety drills, maintenance logs for vessel equipmentinvolved in the man overboard event and the rescueefforts. It may include other materials dependingon the circumstances. For example, if the ship isequipped with security cameras or closed circuitmonitoring, those tapes should be preserved. Promptdrug and alcohol testing of any witnesses or thoseinvolved in the rescue efforts may also be appropriate.

The crew should also document all steps taken in therescue or recovery effort. Compiling and preservingthis evidence in a timely matter can be essential indefending a claim for negligence or unseaworthinessbrought against the ship owner by the victim or,depending on the outcome, the next of kin.

Reporting RequirementsThe master should also be mindful of reportingrequirements. When the ship is within the territorialwaters of a sovereign nation, the incident should bereported to the appropriate maritime authorities.When the ship is on the high seas, reporting theincident to the authorities at the next port of callis usually appropriate. In some instances, whetherthe ship is within territorial waters or on the highseas, it may be also be necessary to report theincident to the flag state.

In all cases, the incident should also be reported tothe P&I club as soon as possible since the assistanceof a P&I correspondent at the next port of call willlikely be required. P&I correspondents can assist inany number of ways, including by conducting an

MAN OVERBOARD! Now what?Working on the high seas can be an exhilarating experience, but a seaman mustalways be alert to the danger of falling overboard.

Jana ByronClaims executive

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investigation, dealing with local authorities, assistingin arrangements for medical care and repatriation,or assisting with the return of remains when thatbecomes necessary.

Successful Rescue When a ship encounters a man overboard situationand the person in the water is recovered, the firstorder of business is to provide immediate medicalcare. The person may require only basic first aid ormore urgent care. The degree of care required needsto be assessed on a case-by-case basis by the master,the ship’s medical officer and any ship-to-shoremedical assistance available. Diverting the ship toprovide medical care or arranging for medicalevacuation may also be necessary. If the recoveredseafarer is unfit for duty, arrangements for a replace-ment at the ship’s next port will also be necessary.

While the health and safety of the recovered seafareris of paramount importance, it may also be wise toconsider arranging for psychological evaluation ofeyewitnesses since witnessing a man overboard canbe traumatic.

Recovery of Remains When the person in the water is not rescued andthe remains are recovered, proper steps need to betaken to preserve the remains onboard until the nextport of call. Members should be aware that diversionsdue to a death onboard are not covered under theClub rules. Remains should be kept chilled, notfrozen, until transferred ashore in accordance withlocal law. Arrangements then need to be made torepatriate the remains to the next of kin.

Normally, the remains are taken to the local MedicalExaminer’s Office for autopsy. The Medical Examinerwill then issue a death certificate, which is requiredto release the body. Once the body is released it istaken to a funeral home for preparation for repatriation.As anyone who has ever dealt with this situationknows, repatriation of remains can be a timeconsuming and complicated undertaking. Furtherinformation on repatriation of remains can be foundin the June 2009 edition of TMA Bodily InjuryNews on our website - www.ukpandi.com.

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Missing, presumed lostIn this situation, a complete search of the ship (fromstem to stern) should be carried out by the crew.The missing crewmember’s quarters should beinspected and his belongings logged. A missingcrewmember is not necessarily a man overboardsituation, but that should always be considered.

When a ship is in port or at anchorage, a missingcrewmember may have deserted. A thorough searchof the crewman’s quarters can provide valuableinsight into the circumstances of the disappearance.For example, has he left behind his passport, wallet,correspondence (hand-written or electronic) orseaman’s book?

Absent evidence to the contrary, a crewmemberwho goes missing in port will likely be presumed adeserter rather than a man overboard. Accordingly,the local customs and immigration authoritiesshould be notified of the disappearance, as well asthe maritime authorities.

When a crewmember goes missing on the highseas, it may also become necessary to contact lawenforcement for the flag state at the ship’s nextport of call, in addition to the maritime authorities,since there may be criminal implications associatedwith the disappearance.

Witnessed but not recoveredWhen a crewmember is lost overboard and rescueor recovery efforts fail, the ship is confronted withchallenges which are different than the other typesof man overboard situations. First, the crew mustfollow through with the man overboard protocols.Next, law enforcement and maritime authoritiesshould be notified. But then what? There is noquestion the crewman went overboard and waslost at sea, but the lack of a body creates numerousadministrative problems.

The P&I correspondent in the seaman’s homecountry should be consulted to provide guidanceand advice regarding requirements for issuance of adeath certificate and determining what benefits, ifany, are due to the crewmember’s next of kin. Theprocess of obtaining a death certificate without anyremains can be difficult, depending on the local laws.

Assistance of the local P&I correspondent can becrucial. To assist the correspondent, the following

documents should be provided:

• Contract of employment, including CBA, if any;

• Pre-Employment Medical Examination (PEME)Report;

• Seaman's application form;

• Service record;

• Incident report and vessel documents andcorrespondents concerning the incident;

• Statement of final wages on board;

• Seaman's book including pages showing date/port of embarkation and disembarkation;

• Passport;

• Other documents that may be relevant to theincident.

Subsequent recovery of remainsIt sometimes happens that the remains of a crew-member who was lost overboard are discovered ata later time. In this situation, the assistance of theP&I correspondent in the crewmember’s homecountry and in the country where the remains arediscovered is crucial. The remains must be identified,which may be complicated by the extent ofdecomposition. A personal identification by thenext of kin may be required by local authorities.

The next of kin tasked with attending the personalidentification may face immigration problems.Identification of remains may also require dentalrecords or a DNA sample from a relative. Once theidentification is made and the body is released, thesteps outlined above for repatriating the remainsshould be taken. If the remains are severelydecomposed and cannot be embalmed for transport,cremation may be necessary. This can be devastatingfor family members, depending on religious orlocal customs.

Conclusion A man overboard situation presents unique challengesand repercussions. Regular drills on the man over-board protocol are critical. Review of the ship’ssystems to ensure all relevant documents and recordsare preserved is also of paramount importance. Inthe chaos and confusion, preparedness is the key.

Louise S. Livingston Direct line: +1 415 343 0121

Louise leads the TMA Bodily InjuryTeam. Before joining TMA in 2002,Louise spent 9 years in practice as apartner in a San Francisco law firm.

TMA Bodily Injury Team

www.ukpandi.com

Karen C. HildebrandtDirect line: +1 201 557 7425

Karen practised for 18 years at aleading maritime law firm where shewas a partner before joining TMAin May 1998. She specialises inpersonal injury claims

Jana ByronDirect line: +1 201 557 7433

Jana joined TMA in November 2005after seven years of practice as anattorney specializing in maritimematters. She handles both Defenceand P&I claims.

Dolores O'LearyDirect line: +1 201 557 7402

Dee joined TMA in December 2007after 17 years practicing law in NewYork City with a firm specializing inmaritime matters. She handles allP&I claims.

Linda Wright Direct Line: +1 415 343 0122

Linda joined Thomas Miller (Americas)in May 2010. Previously she was aP&I Club correspondent on thePacific West Coast for 29 years. Shehandles personal injury cases.

More than half of the Club's personal injuryclaims over $100,000 are brought in theAmerican courts.

The TMA Bodily Injury Team are a specialistgroup from both the New Jersey and SanFrancisco offices empowered with asignificant settlement authority to dealwith these demanding cases. Under theleadership of Louise Livingston they applycollective team expertise and experienceto a variety of bodily injury matters. The teamreview and determine strategy in all majorinjury cases and regularly attend settlementconferences and mediation.

Thomas Miller (Americas) IncNew JerseyHarborside Financial CenterPlaza Five, Suite 2710Jersey City, N.J. 07311, USAT +1 201 557 7300E newjersey.ukclub@thomasmiller.com

San Francisco44 Montgomery StreetSuite 1480San FranciscoCalifornia 94104, USAT +1 415 956 6537E sanfrancisco.ukclub@thomasmiller.com

Markus McMillinDirect line: +1 415 343 0113

Markus joined TMA in 2006, aftereight years working at two maritimelaw firms in San Francisco. Hehandles both Defence and all P&Iclaims.

Noreen D. ArraldeDirect line: +1 201 557 7333

Noreen joined TMA in 2012 after13 years with a US litigation firmand six years as claims managerfor a global container shippingcompany. She is a trial attorneyand handles all types of P&I claim.

San Francisco

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