VIOLATION OF STATUTORY WORK HOURLIMITS AND SHIPOWNER LIABILITY

BACKGROUND

Congress in its move to limit the work hours that seamen are permitted to work

promulgated, 46 U.S.C.A. §8104 which sets forth statutory work limits for seamen on various

types of vessels:

(a) An owner, charterer, managing operator, master, individual in charge, or other person

having authority may permit an officer to take charge of the deck watch on a vessel when leaving

or immediately after leaving port only if the officer has been off duty for at least 6 hours within

the 12 hours immediately before the time of leaving.

(b) On an oceangoing or coastwise vessel of not more than 100 gross tons as measured

under section 14502 of this title, or an alternate tonnage measured under section 14302 of this

title as prescribed by the Secretary under section 14104 of this title (except a fishing, fish

processing, or fish tender vessel), a licensed individual may not be required to work more than 9

of 24 hours when in port including the date of arrival, or more than 12 of 24 hours at sea, except

in an emergency when life or property are endangered.

(c) On a towing vessel (except a towing vessel operated only for fishing, fish processing,

fish tender, or engaged in salvage operations) operating on the Great Lakes, harbors of the Great

Lakes, and connecting or tributary waters between Gary, Indiana, Duluth, Minnesota, Niagara

Falls, New York, and Ogdensburg, New York, a licensed individual or seaman in the deck or

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engine department may not be required to work more than 8 hours in one day or permitted to

work more than 15 hours in any 24-hour period, or more than 36 hours in any 72-hour period,

except in an emergency when life or property are endangered.

(d) On a merchant vessel of more than 100 gross tons as measured under section 14502 of

this title, or an alternate tonnage measured under section 14302 of this title as prescribed by the

Secretary under section 14104 of this title (except a vessel only operating on rivers, harbors,

lakes (except the Great Lakes), bays, sounds, bayous, and canals, a fishing, fish tender, or

whaling vessel, a fish processing vessel of not more than 5,000 gross tons as measured under

section 14502 of this title, or an alternate tonnage measured under section 14302 of this title as

prescribed by the Secretary under section 14104 of this title, yacht, or vessel engaged in salvage

operations), the licensed individuals, sailors, coal passers, firemen, oilers, and water tenders shall

be divided, when at sea, into at least 3 watches, and shall be kept on duty successively to perform

ordinary work incident to the operation and management of the vessel. The requirement of this

subsection applies to radio officers only when at least 3 radio officers are employed. A licensed

individual or seaman in the deck or engine department may not be required to work more than 8

hours in one day.

(e) On a vessel designated by subsection (d) of this section -

(1) a seaman may not be

(A) engaged to work alternately in the deck and engine

department; or

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(B) required to work in the engine department if engaged for deck

department duty or required to work in the deck department if engaged for engine

department duty;

(2) a seaman may not be required to do unnecessary work on Sundays,

New Year's Day, July 4th, Labor Day, Thanksgiving Day, or Christmas Day,

when the vessel is in a safe harbor, but this clause does not prevent dispatch of a

vessel on a voyage; and

(3) when the vessel is in a safe harbor, 8 hours (including anchor watch) is

a day's work.

(f) Subsections (d) and (e) of this section do not limit the authority of the master or other

officer or the obedience of the seamen when, in the judgment of the master or other officer, any

part of the crew is needed for -

(1) maneuvering, shifting the berth of, mooring, or unmooring, the vessel;

(2) performing work necessary for the safety of the vessel, or the vessel's

passengers, crew, or cargo;

(3) saving life on board another vessel in jeopardy; or

(4) performing fire, lifeboat, or other drills in port or at sea.

(g) On a towing vessel, an offshore supply vessel, or a barge to which this section

applies, that is engaged on a voyage of less than 600 miles, the licensed individuals and

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crewmembers (except the coal passers, firemen, oilers, and water tenders) may be divided, when

at sea, into at least 2 watches.

(h) On a vessel to which section 8904 of this title applies, an individual licensed to

operate a towing vessel may not work for more than 12 hours in a consecutive 24-hour period

except in an emergency.

(k) On a fish processing vessel subject to inspection under part (b) of this subtitle, the

licensed individuals and deck crew shall be divided, when at sea, into at least 3 watches.

(1) Except as provided in subsection (k) of this section, on a fish processing

vessel, the licensed individuals and deck crew shall be divided, when at sea, into at least 2

watches if the vessel -

(m) This section does not apply to fish processing vessel -

(1) Entered into service before January 1, 1988, and is more than 1,600 gross tons

as measured under section 14502 of this title, or an alternate tonnage measured under section

14302 of this title as prescribed by the Secretary under section 14104 of this title; or

(2) Entered into service after December 31, 1987, and has more than 16

individuals on board primarily employed in the preparation of fish or fish products.

(n) On a tanker, a licensed individual or seaman may not be permitted to work more than

15 hours in any 24-hour period, or more than 36 hours in any 72-hour period, except in an

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emergency or a drill. In this subsection, "work" includes any administrative duties associated

with the vessel whether performed on board the vessel or onshore.

(o) (1) Except as provided in paragraph (2) of this subsection, on a fish tender vessel of

not more than 500 gross tons as measured under section 14502 of this title, or an alternate

tonnage measured under section 14302 of this title as prescribed by the Secretary under section

14104 of this title engaged in the Aleutian trade, the licensed individuals and crewmembers shall

be divided, when at sea, into at least 3 watches.

(2) On a fish tender vessel of not more than 500 gross tons as measured under

section 14502 of this title, or an alternate tonnage measured under section 14302 of this title as

prescribed by the Secretary under section 14104 of this title engaged in the Aleutian trade, the

licensed individuals and crewmembers shall be divided, when at sea, into at least 2 watches, if

the vessel –

(A) before September 8, 1990, operated in that trade; or

(B)(i) before September 8, 1990, was purchased to be used in that trade;

(p) The Secretary may prescribe the watch standing and work hours requirements for an

oil spill response vessel.

Generally, violations of the statute impose a $10,000 civil penalty if violated by those set

forth in subsection (a) or (b). The owner, charterer or managing operator of the vessel in

violation under subsections (c), (d) or (h) is liable for a civil penalty of $10,000. Furthermore, the

seaman is entitled to a discharge from the vessel and receipt of wages.

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WHAT LAW APPLIES

In 1990, the Ninth Circuit Court of Appeals considered an action brought by various

shipping associations in the district court seeking declaratory and injunctive relief on the ground

that California's overtime pay laws were preempted by federal admiralty law.<Pacific Merchant

v Lloyd 918 F.2d 1409>. The district court granted summary judgment for the employers

declaring the labor commissioner's actions preempted by federal admiralty law and enjoined

further enforcement of California's overtime pay laws against Clean Seas, Tidewater and the

other maritime employers.

The appeal examined workers who are exempted from the Fair Labor Standards Act, 29

U.S.C. §§ 201-219, as seamen and workers who, while not exempted from the FLSA's overtime

provisions for pay are still seamen in the broader sense. One of the plaintiffs-appellees'

employees, whose wage claims led to this appeal, worked on vessels that cleanup oil spills and

other environmentally hazardous discharges off the California Coast. The employees were

organized into two crews of six each, and the crew works seven day hitches at sea alternating

with seven-day rest periods at shore. At sea they typically work 12-hour shifts alternating with

12-hour rest periods. Of the employees involved in the underlying action, two were licensed

mates and ten were certified as seamen by the U.S. Coast Guard.

The district court made no findings on the question of whether the employees where

FLSA-exempt seamen. That question is one of fact and must be decided by the district court.

However, because the ninth circuit found that California may apply its overtime provisions to

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both the FLSA-exempt seamen and the non-exempt maritime employees involved in this suit, the

case did not require remand to determine the status of the employees.

The core issue was whether federal law preempted California from applying its overtime

pay laws to seamen working on territorial waters and on the high seas off the California coast

and to maritime employees working primarily on the high seas off the California coast, when the

vessels on which the employees work do not engage in foreign, inter-coastal or coastwise

voyages? The court answered no. To decide whether a federal statute preempts state law, court

was to ascertain the intent of Congress. Federal law will preempt if (1) Congress expressly so

states; (2) Congress enacts comprehensive laws that leave no room for additional regulation or;

(3) state law actually conflicts with federal law. <Silkwood v Kerr-McGee 464 U.S. 238, 248>.

The appellees maintained that Congress preempted through the Shipping Act. 46 U.S.C. §§

10301-10908. The ninth circuit agreed with the lower court that these provisions do not apply to

govern the overtime wages of employees such as those in this action. The district court noted that

the provisions were not applicable to the employees involved in this appeal because they cover

only vessels engaged in foreign, intercoastal or coastwise voyages. The Shipping Act, 46 U. S.

C. § 1030 1 - 10908, in no way regulated overtime pay.

Appellees also argued a conflict arose between 46 U. S. C. §8104 (b) that created a 12-

hour maximum work limitation and California's overtime pay laws that required overtime for

hours in excess of eight per day. The court rejected such a contention because appellees made no

showing that the effect of the labor commissioner's enforcement action would be to set a

maximum work hour limitation different from that set forth in 46 U. S. C. §8104.

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The district court held that the FLSA preempted California overtime pay laws because

Congress' decision to exclude seamen from the federal act's overtime provisions evidenced its

intent to preempt all state overtime laws as to those employees whether on territorial waters or

the high seas. The ninth circuit found no preemption because the seamen involved worked both

on California's territorial waters and on the high seas.

The court examined whether a specific legislative provision exempting seamen from

FLSA's overtime compensation standard should be read to indicate a preclusion of states from

regulation of seamen to overtime compensation. The court examined congressional intent and

found that at no time did Congress expressly prohibit states from applying overtime laws to

seamen. Congress intended to prevent overlapping regulations of wage and hour conditions of

seamen by different federal agents in exempting seamen from the coverage under the FLSA's

1938 provisions. This court found that in light of the plain language of FLSA's saving clause and

in the absence of a clear indication from Congress to the contrary, §213 (b)(6) does not preclude

enforcement of California's overtime provisions to protect the California resident seamen. The

district court erred by holding §213 (b)(6) preempted California overtime pay laws to the FLSA -

exempt seamen either on the high seas or within the territorial waters off the California coast.

The court addressed the question of whether FLSA preempted California from applying

the states' overtime pay laws to maritime workers, not exempt from FLSA, who work on vessels

situated primarily on the high seas off the California coast. The ninth circuit reversed the district

court and held that §218 would be construed to allow the labor commissioner's action with

respect to maritime employees on the high seas. This action is a delegation of congressional

maritime powers to the state, and thus, California's action in this case represented an exercise of

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traditional police powers firmly in place before Congress enacted the FLSA. The general rule on

preemption in admiralty is that states may supplement federal admiralty laws as to matters of

local concern, just so long as the state law does not actually conflict with the federal law or

interfere with the uniform working of the maritime legal system.

In this case the balance tips in favor of California because the labor commissioner is

charged with enforcing state wage provisions to insure the health, safety and welfare of resident

employees. The record indicated that the maritime employees involved were California residents,

interviewed and hired in California and paid California taxes. Their contacts with the state were

close. The vessels involved with this case do not make coastwise, intercoastal or foreign

voyages. The vessels at issue are moored in a California harbor and are stationed exclusively off

the California coast and visit only California ports.

Duplication of California's overtime laws would not disrupt international or interstate

commerce. Uniformity in admiralty law is required only where the essential features of exclusive

federal jurisdiction are involved. There would be minimal impact, which led the court to

conclude that the essential features of exclusive federal jurisdiction were not unduly burdened in

this case.

THE EMPLOYMENT AT WILL DOCTRINE

The leading case on retaliatory discharge is <Feemster v BJ-Titan 873 F 2d 91>.

Defendant ship owner ordered it’s at will employee, a tugboat captain to embark upon 18-hour

trip. Plaintiff alleged that defendant required him to make the trip without stopping although

defendant disputed that it forbade stops. Plaintiff refused to make the run because it would

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violate a federal law that generally restricts vessel operation to 12 hours in a 24-hour period. {46

U.S.C. §8104 (h)}. As a result of plaintiff’s refusal defendant discharged him.

He filed a wrongful discharge action pursuant to the general maritime law. The district

court granted summary judgment to defendant ruling that neither the safety statute or general

maritime law gave plaintiff a right of action. The fifth circuit affirmed the lower court holding

that general maritime law affords no private right of action for retaliatory discharge to a seaman

who refuses to obey an illegal order. Plaintiff alleged that his case was analogous to <Smith v

Atlas 653 F 2d 1057>. The court in that case implied a cause of action when a seaman was fired

for filing a Jones Act personal injury claim against his employer. In Smith the court opined that

the seaman was employed at will and that employment at will may be terminated for any or no

reason including a morally reprehensible reason. Nonetheless, there is an exception to the

doctrine when the discharge offends public policy. The motivating factor in this discharge was

the filing of a Jones Act claim against plaintiff s employer. In Feemster, no such exception was

warranted. Congress' reorganization and revision of Title 46 in 1983, stated the following

purpose:

The alternate aim of the legislation is three fold; to make maritime safety and seamen

protection law easier for the Coast Guard to administer, to make it less cumbersome for the

marine community to use, and to make it more understandable for everybody involved. H. R.

Rep. No. 338, 98th Congress 1st Session 113 (1983) U. S. Code Cong. and Admin. News 1983,

p. 924.

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Based upon Congress' statement about the aim of the legislation, and the recent

amendment of these laws, the court believed it significant that Congress provided no private

right of action for retaliatory discharge. The general purpose of the legislation was to promote

maritime safety, but not with employees acting as private enforcers and as private attorney

generals; the enforcer is the U. S. Coast Guard. Further, the individual seaman is still afforded a

voice to complain of safety violations to the Coast Guard.

If Feemster had filed such a complaint and had been fired for doing so, he would have

had a stronger argument that his discharge contravened public policy. Feemster never embarked

on this journey and there was no violation of law since plaintiff simply interposed his judgment

against that of the management that a safety violation would occur. It was pure speculation as to

whether the law would have been violated.

In <Borden vs. Amoco 985 F Supp 692>, the court denied defendant's motion for

summary judgment. Plaintiff filed a wrongful discharge case under the public policy exception to

the employment at will doctrine and was terminated allegedly because he refused to sail in

storms on two different occasions. The court found that Feemster controls, but read the case to

mean that the fifth circuit will never recognize an exception to the employment at will doctrine

based on a seaman's refusal to violate the safety statute. Comparing Smith, supra and Feemster,

supra the court found that the public policy issues in the case at bar were much stronger than in

Feemster. Prior to the two storm delays, two leaks were found in the vessel and plaintiff testified

that he refused to sail fearing for the safety of his crew and fearing a spill of the toxic chemical

paraxylene (the cargo included 52 million pounds of paraxylene). Plaintiff asserted that had he

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sailed the tug in its condition, he would have been in violation of 46 U. S. C. § 10908, which

prohibits sending an unseaworthy vessel to sea that will endanger the life of an individual.

Plaintiff testified in his deposition that defendant's supervisors told him he may be

ordered to sail, "to tell you to sail out of here ... Chicago told me that if my captains are too

conservative to fire them". Plaintiff responded that no prudent mariner would sail this type of rig

towards a storm. The court found such quoted language in and of itself sufficient to create a fact

issue regarding whether plaintiff was clearly required to sail in the face of inclement weather.

See <Anderson v Liberty 477 US 242, 250>.

In <Garrie v. James 912 F 2d 808>, a new exception to the at will doctrine was sought

under the whistleblower statute. {46 U.S.C. § 2114}, forbids retaliation against "whistleblower

seamen who report or are about to report safety violations to the Coast Guard. The fifth circuit

declined to create the exception indicating that one was not warranted by the plain meaning of

the statute and their recent decision in Feemster.

Factually, plaintiff phoned the Coast Guard to inquire about the 12-hour limit under

section 8104(h), but did not report a safety violation or led anyone to believe that he planned to

do so, and therefore he could not claim the narrow protections of section 2114. Plaintiff sought

information, but did not provide it. He did not reveal the name of his employer or the vessel upon

which he was employed. He communication did not serve the statute's purposes. He had no claim

for wrongful discharge under §2114.

WORK HOUR LIMITATIONS IN LICENSE PROCEEDINGS

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In <Williams v National Transportation 1997 U S App LEXIS 21536>. Petitioner sought

review of the NTSB's affirmance of the U. S. Coast Guard's decision to suspend his merchant

mariner's license and document. At the time of the offending incident, petitioner was operating a

vessel, which was overtaking another vessel in essentially the same direction approximately 100

to 250 yards away. Petitioner asked an unlicensed crewmember to assume control of the helm so

that he could take a bathroom break. The only licensed crewmember on board was the captain

who was asleep at the time. While the petitioner was absent from the wheelhouse; the vessel

collided with the other, which sank after impact with no loss of life.

The Coast Guard subsequently suspended petitioner's license for four months and placed

him on probation for one year. A misconduct finding turned on violation of {46 U.S.C.

§8904(a)}, which provides that a towing vessel shall be operated by an individual licensed by the

Secretary to operate that type of vessel in the particular geographic area. As one of his defenses,

petitioner claimed that his due process rights were infringed by the misconduct charge because

he was confronted with a choice between violating one of two regulations: either by yielding

control of the vessel to an unlicensed crewmember, or by awaking a licensed replacement who

was statutorily disqualified. Petitioners contend that the captain had worked more than 12 hours

in the previous 24 and that {46 U.S.C. §8104(h)} precluded him from taking control. The ninth

circuit disagreed. The quandary petitioner found himself in was not one of the Coast Guard's

making; rather, the number of licensed crewmembers on board was the responsibility of the

owner or manager of the vessel. Further, petitioner would not have been subject to the sanctions

under §8104(h), which provides: that only a "owner, charterer, managing operator of a vessel

will be held accountable for infractions of the 12 hour rule." Petitioner served merely as a mate

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and would not have been liable for exceeding the maximum number of hours. The court rejected

petitioner's argument against the suspension of his license.

STATUTORY WORK HOUR LIMITATIONS AS APPLICABLE TO CLAIMS FOR JONES ACT NEGLIGENCE AND UNSEAWORTHINESS

<In the matter Denet Towing Service as owner of M/V Jerrold Jr., praying for

Exoneration From or Limitation of liability, 1999 U. S. Dist. LEXIS 12013>, plaintiffs filed a

claim against defendant for overworking decedent Littleton to the point that he was unable to

lookout for his own safety. Plaintiffs contend that plaintiffs' decedent was overworked in

violation of the Hours of Service Act, {49 U.S.C. §21103}, which provides that a railway

employer may not require a railway employee to remain on duty unless ... after that employee

has been on duty 12 consecutive hours ... that the employee has had at least 10 consecutive hours

off duty.

Plaintiffs argued that the Hours of Service Act is applicable because the Jones Act

provides that all statutes of the United States modifying or extending a common-law right or

remedy in cases of personal injury to railway employees shall apply to seamen. However, the

court held that the Hours of Service Act does not apply to Jones Act cases because it does not

modify or extend the common right or remedy in cases of personal injury as contemplated by the

Jones Act. The Jones Act adopts only statutes that regulate rights and remedies of railroad

employees under the FELA; it does not adopt statutes that actually regulate railroads.

The concepts are not applicable to the Hours of Service Act, because time on duty

references to the movement of a train provides no equivalent to a vessel's movement. Further,

the court found that there was no proof that decedent's work schedule contributed even slightly to

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his death. Decedent volunteered to work overtime the previous night, and not all of the work

done during the day or night could be considered strenuous. Medical testimony showed no signs

of fatigue or inattentiveness by decedent on the day of the accident. The court exonerated the

vessel from liability.

COLLISIONS AND THE PENNSYLVANIA RULE

Perhaps the most famous of cases <In re Exxon Valdez 1995 U. S. Dist. LEXIS 12949 >

examined evidence regarding officer fatigue. Substantial evidence was presented that allowed a

reasonable jury to conclude that the mate was fatigued at the time of the grounding and that

Exxon was aware that its vessels were manned with fatigued crews, but recklessly ignored the

attendant risk. The parties debated whether Exxon was in compliance with {46 U.S.C. §8104}.

Although Exxon did not keep records of its officer's time, officers were instructed to comply

with §8104. The Coast Guard did not charge Exxon with failure to comply with §8104, but

sufficient evidence existed that reasonable minds could reach inconsistent conclusions on

whether Exxon was reckless regarding compliance with §8104. However, it was insufficient to

grant Exxon's motion on the fatigue issue. For this reason, the jury's award of punitive drainages

against the owner of the Exxon Valdez was upheld.

In <Koch v M/V Jennifer L. Boudreaux, 85 F.3d 213> the matter arose out of a barge

sinking while in the tow of the MN Jennifer L. Boudreaux in an Atlantic Ocean storm. The court

found that during a voyage in the excess of 600 miles, a merchant vessel over 100 gross tons

must have sufficient crew to maintain three watches {46 U.S. C. §8104}. There must be three

properly licensed crewmembers and there must be three deckhands.{46 U.S.C. §8104(d)(h)}.

The court found that the M/V Jennifer L. Boudreaux was in violation of this section. In

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conjunction with this violation, the Pennsylvania Rule states that when a vessel at the time of the

casualty is in violation of the statutory rule intended to prevent the occurrence, the burden rests

upon the vessel to show that her fault not only was not, but also could not have been the cause of

the loss. <The Pennsylvania 86 U.S. 125>. The Pennsylvania Rule shifts the burden of proof as

to causation to the statutory offender. <United Overseas v Medluck 785 F 2d 1320, 1325>.

Under the Pennsylvania Rule the burden is on the tug interests to show that the sinking of the

barge could not have been caused by the violation of {46 U.S.C. §§8104, 8304 and 8904}. As to

§§8304 and 8904, the court found that the tug interests had not satisfied their burden of proof,

since the tug failed to have a licensed master on board which was a contributing cause of the loss

of the barge. The unfamiliarity of the crew with the area and its weather conditions and the

consequent failure to avoid the treacherous weather conditions were also causes of the loss of the

barge. However, the court found that the tug interests satisfied their burden of proof on the issue

of the number of crewmembers; the tug's failure to have six men on board was not a proximate

cause of the loss of the barge.

As to privity and knowledge of the ship owner, any loss occurring due to the owner's

breach of his duty to furnish a fully competent master and crew and to insure the ship is

seaworthy is considered to be within such privity. As a result of these findings, the court

apportioned liability between the barge and the tug.

In recent years, courts are more sensitized to violations of statutory work hours and have

demonstrated a willingness to affix liability based upon such violations.

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In a statutory work hour violation case, the client will generally be a seaman or other

licensed individual that sails the Great Lakes or ports from the various coasts. As a result of this

chosen career path, the attorney that endeavors to handle violations of statutory work hours must

build a rapport with a client that will not be conversant in what may be needed to prove a claim.

It is important that counsel obtain all pay records, statements of coworkers and other

pertinent information as soon as possible. This is particularly true in a case where the seaman is

subject to disciplinary action by the Coast Guard or other governmental authority for his

participation in a statutory work hour violation.

If the Coast Guard is involved in prosecuting a violation of statutory work hours it is

imperative to gather material that is of a defensive strategy to the seamen as protection to prevent

suspension or revocation of his sailing ticket and/or license.

In the event that the Coast Guard is looking to issue a license suspension or revocation,

the sailor is risking impairment to his entire career and livelihood. Due the transient nature of

the work that seamen do because of their chosen careers, frequently relatives will not be

geographically located to offer emotional support. The attorney becomes as important as family

to that particular individual. Further, it is not uncommon for the maritime attorney to travel on a

nationwide basis to represent aggrieved seamen in claims for work hour violations. The attorney

must be prepared to travel to meet a vessel at waterfront locations wherever the port of call may

be located.

PRELIMINARY INVESTIGATION

In order to adequately investigate the seaman’s claim, prepare standard authorizations for

the seaman to sign for all records addressed to the Commandant of the U.S. Coast Guard, the

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employer, the Department of Labor and any other service that prepares or maintains payroll

information. The following are suggested forms for authorizations directed to the Commandant

of Coast Guard for employment records and a Freedom of Information Act request to be directed

to governmental agencies that may have information on an individual’s work hours.

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Authorizations

EMPLOYER

To: ______________________

_____

_____

NameSocial Security No.

Date of Birth:

I, ____________________, hereby authorize you to furnish law firm name and address at their expense, copies of any and all records pertaining to me, including but not limited to personnel file, applications for employment, job descriptions, performance evaluations, wage and benefit information, my complete Welfare Plan, Pension Plan, and Vacation Plan files, together with all other records and documents covering wages, and hours worked by me, and any other record of any nature whatsoever pertaining to me through the date you receive this authorization. You may rely on a photocopy of this authorization in lieu of the original.

_________________________________________Name

__________________________________________Date

STATE OF ) ) SS:

COUNTY OF )

Sworn to before me and subscribed in my presence on this day of

__________, 2001.

_________________________________NOTARY PUBLIC

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CommandantUnited States Coast Guard2100 Second St., SWWashington D.C. 20593-0001

Merchant Vessel Personnel Division

Gentlemen:

You are hereby authorized to furnish law firm name and address at their expense, all records pertinent to my service in the United States Merchant Marine, commonly referred to as sea service records. You may rely on a photocopy of this authorization in lieu of the original.

_________________________________Name

_________________________________Date

Social Security No. ________________

Date of Birth: ____________________

STATE OF )) SS.

COUNTY OF )

Sworn to and subscribed before me on this _______ day of ________________, 2001.

_________________________________Notary Public

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U. S. Coast GuardMarine Safety OfficeAddress

NAME:DATE OF INCIDENT:

Dear Sir/Madam:

We are currently investigating the M/V_________________, for a violation of

statutory work hours by Name____________________, Social Security No._________________

which occurred on ___________________. Pursuant to the Freedom of Information Act 5 USC

§522(a), we respectfully request that you send us copies of any and all records of any nature

whatsoever regarding the Coast Guard’s investigation of this incident. The records produced

should include all notes taken by your investigators, copies of all documents obtained by them,

and a full complete copy of any report issued by your office. Your reasonable copying charges

will be paid upon receipt of your invoice.

Thank you for your assistance.

Very truly yours,

LAW FIRM P.L.L.

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ATTORNEY REPRESENTATION OF CLIENT

The typical financial arrangement that the attorney enters into to handle a seaman’s

statutory work hour violation involves one, which places the lion share of the risk with the

attorney. The attorney generally handles the case on a contingency basis, which allows one to

reap as an attorney’s fee a percentage of a settlement or verdict (usually one third or 40%) minus

expenses recaptured from the gross recovery. The fee schedule is set forth in a contingency fee

agreement executed between the attorney and client. Individual states have different regulations

as to the amount of the attorney fee, expenses and whether funds may be advanced to a client in

dire need. A suggested contingent fee agreement is set forth below.

LEGAL REPRESENTATION AGREEMENT

Dear Mr. Name:

My firm would be pleased to represent you in this matter on the following terms:

I. SCOPE OF ENGAGEMENT

A. Counsel Functions. We will perform the following legal services relative to

these claims: review of applicable statutes, research of case law, interview and taking statements

of witnesses, the taking of depositions, retaining the services of experts where necessary, and

consultations with them, planning and preparation of exhibits if necessary, preparation of

pleadings, court appearances, negotiations with insurance adjusters and opposing counsel,

correspondence, and meetings and telephone conversations with you, and all other services

necessary to bring these claims to a conclusion.

B. Client Functions. You agree to perform the following functions:

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1. You agree to pay us a fee contingent upon the outcome of these claims,

and to pay for all expenses incurred, as specified in Section II below;

2. To cooperate fully with us and to provide all information known by or

available to you, which may aid us in representing you.

C. Authorization and Decision-Making. You authorize and direct us to take all

actions, which we deem advisable on your behalf. We agree to notify you promptly of all

significant developments and to consult with you in advance as to any significant decisions

attendant to those developments. We agree that we will discuss the results of our investigation

with you prior to filing a lawsuit in this matter and that we will seek your approval before filing

any lawsuit.

II. LEGAL FEES AND EXPENSES

A. Method of Determining Fees. (Dependent upon state law for allowable

percentage to be collected). You agree with us that the following method is to be used for

determining the proper amount of legal fees:

1. If recovery is made on your behalf, you agree to pay us, for legal services

rendered, a sum equal to:

33-1/3% of any and all sums recovered by way of settlement prior to trial, by trial

or by way of settlement after a trial has begun; or

23

40% of any and all sums recovered in the event we are to file a motion for a new

trial or if the matter is appealed or retried.

2. If there is no recovery, there shall be no fees owed by you to us for

representation.

B. Other Fees, Charges, and Expenses. Regardless of whether there is a recovery

in your case, and irrespective of whether a fee is paid to us, you agree to pay all charges,

expenses and other fees as follows:

1. You authorize us to retain and agree to pay the fees or charges of every

other person or entity hired by us to perform necessary services related to your claims.

Such other persons and entities may include, but are not limited to, court reporters,

investigators, expert witnesses, and other attorneys hired for ancillary matters;

2. You acknowledge that we may incur various expenses in providing

services to you. You agree to reimburse us for all out-of-pocket expenses paid by us.

Such expenses include, but are not limited to, charges for serving and filing papers,

recording and certifying documents, depositions, transcripts, investigations, witnesses,

long-distance telephone calls, copying materials, travel expenses and postage.

III. GENERAL MATTERS

A. Termination of Representation. The relationship established by this Agreement

is subject to termination as follows:

24

1. We reserve the right to withdraw our representation if you fail to honor

this Agreement. Notification of withdrawal shall be made in writing to you. In the event

of such withdrawal, you agree to promptly pay us all the reasonable value of services

rendered by us and all other fees, charges, and expenses incurred pursuant to Section II.B.

of this Agreement prior to the date of such withdrawal.

2. You reserve the right to terminate the representation for cause if we fail to

honor this Agreement. Notification of the termination shall be made in writing by you to

us. In the event of any such termination by you, you shall promptly reimburse us for all

other fees, charges, and expenses incurred pursuant to Section II.B. of this Agreement

prior to the date of such termination.

3. You also have the right to terminate the representation without cause, and

shall notify us in writing of any such termination. In the event of any such termination,

you agree to promptly pay us the reasonable value of all services rendered by us and all

other fees, charges, and expenses incurred pursuant to Section II.B. of this Agreement

prior to the date of such termination.

B. Effort and Outcome. We agree to use our best efforts in representing you;

however, you acknowledge that we have given no assurances regarding the outcome of your

claims.

If the foregoing is agreeable to you, please sign the enclosed copy of this letter and return

it to us in the envelope we have provided.

25

We have also enclosed various authorizations, which we plan to use to obtain

records from various sources. Please sign and date each authorization where indicated. Please

return the signed authorizations in the envelope with the signed copy of this letter agreement. It

would also be helpful if you could send a copy of any other documents as requested on the intake

form you may have regarding this incident.

Please feel free to call if you have any questions at any time regarding our

handling of this matter for you.

Very truly yours,

Law Firm P.L.L.

I agree to these terms.

________________________________Name

Dated

CLIENT INTAKE FORM

Client’s full name_________________________________________________________

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Other aliases or names that client has worked under or been known to use_____________________________________________________________________

Z number or seaman’s card no._______________________________________________

Social Security Number____________________________________________________

Driver’s license number____________________________________________________

Home address____________________________________________________________

City, State and Zip________________________________________________________

Address of nearest living relative or contact person _______________________________________________________________________

Address of current employer_________________________________________________

Address of homeport union hiring hall_________________________________________

Coast Guard licenses held___________________________________________________

Coast Guard licenses tested for ______________________________________________

Unlicensed positions held as a seaman_________________________________________

Cellular phone number or pager number_______________________________________

Home phone number______________________________________________________

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Employer phone number____________________________________________________

Employer personnel Manager’s phone number__________________________________

Years with the company____________________________________________________

Positions sailed and dates of such service, and vessel name for the last five years_______ ________________________________________________________________________________________________________________________________________________

Immediate supervisor at time of incident_______________________________________

Seaman’s Article’s signed - indicate if end of the voyage_________________________________________________________________________________________________

Current pay rate__________________________________________________________

Current overtime pay rate (including holiday pay rate)____________________________

Rates for vacation, sick pay and pension contributions____________________________

General education including degrees, institutions and dates attended________________________________________________________________________________________

Technical education including degrees, institutions and dated attended______________________________________________________________________________________

Other specialized training held including degrees or awards, institutions and dates attended ________________________________________________________________________________________________________________________________________

Previous history of employment for two employers prior to current employer__________

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_______________________________________________________________________

Medical condition, which may affect employment________________________________________________________________________________________________________

Medical attention attributed to work in excess of statutory work hours________________________________________________________________________________________

Gross tonnage of vessel that individual worked on during violation of work hour restrictions_______________________________________________________________

The route vessel transited during violation______________________________________

General route vessel transited for last five voyages_______________________________________________________________________________________________________

Dates of incidents giving rise to claim for violation of statutory work hours____________________________________________________________________________________

Names, addresses, phone numbers of others that violated statutory work hours_________________________________________________________________________________________________________________________________________________________

Name of supervisor and/or company representative that had knowledge of work hour violation________________________________________________________________

Have you ever filed a grievance or complaint regarding the violation of statutory work hour limitations. If yes, indicate the facts giving rise to the violation including, names, dates and circumstances giving rise to the statutory work hour violation _____________________________________________________________________________________________________________________________________________________________

Did an employer ever terminate you. If yes, provide dates, name of employer and detailsof termination____________________________________________________________________________________________________________________________________

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Have you filed any complaint with a governmental agency including but not limited to the U. S. Coast Guard or the Department of Labor___________________________________

If yes, give facts, dates and names ____________________________________________________________________________________________________________________

Provided a detailed narrative description of pertinent facts, places, people applicable to your claim_______________________________________________________________________________________________________________________________________________________________________________________________________________

Copy the following:

Seaman card;

Licenses;

Vessels certificates issued by the Coast Guard;

Drivers license;

Statements, letters, memos, employee handbooks regarding work hours in general;

logbooks, pay records, time sheets, punch cards, safety meeting minutes, manuals

pertaining to your service aboard the vessel.

CASE MANAGEMENT

If the attorney has agreed to represent a seaman that does not reside locally or a claim

that occurred elsewhere, substantial money must be devoted to travel expenditures. By its very

nature, litigation involving seamen will involve witnesses living in locations far from where their

employers conduct business or the location where they join the vessel.

30

Typically, seamen will travel significant distances to sail and the attorney must keep this

in mind when evaluating the value of the claim. Damages must be substantial enough to support

higher than average cost expenditures needed to properly investigate and work up the case.

Multiple trips to witness work or home locales must be factored into the costs because the ship

owner is only obligated to produce managing agents (licensed officers, i.e. Chief engineer, First

mate, Steward). Since the ship owner is limited as to the witnesses that it must produce, counsel

must be cognizant of vacation and lay up (vessels stop operating due to ice conditions or because

the seaway has closed for the season which can constitute eight weeks or more of off time) times.

Vacation can vary based upon the route sailed, but on the Great Lakes it is usually sixty days on

the vessel with the next thirty off on vacation.

These breaks in service will be the most advantageous time to interview and depose

crewmembers needed to develop the claim. The other option is to depend on a vessel’s port of

call schedule. Although various departments are needed to dock and unload the vessel, there is

generally some down time that allows meetings or depositions to be accomplished while in port.

However, gauging with any certainty a vessel’s arrival is highly unpredictable. Weather,

mechanical failure, docking congestion, etc. will make prediction nothing more than a guess. It

is for the best to strive for longer time periods when the crewmember will be off the vessel on

vacation or lay up.

A significant way to reduce expenses is to use one of the many services available to set

up video conferencing. A court reporter and the witness are at one location and the attorneys

may do the deposition from their office. This can drastically reduce the out of pocket travel cost

necessary to depose vital witnesses. One caveat to remember is that the seaman witness may

really need the support of having the attorney present that wishes to memorialize his testimony.

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To be left on his own may be unacceptable to the seaman witness. The attorney needs to

ascertain whether his personal presence is necessary and the importance of the witness to the

case.

In organizing the trial team and experts needed, there should be one attorney that is

knowledgeable of all aspects of vessel operation. Attorneys that have previously sailed as

merchant mariners, in the military or have specialized training such as naval architecture are

useful in deciphering technology or operations foreign to the nonseafarer.

It is imperative that the attorney maintains a casual demeanor when interfacing with

seamen. Many are intimidated by lawyers and will relate easier to people they feel a connection

to, those that have worked on the boats or are respectful of the very difficult job they undertake

in unpleasant conditions. An attitude not deferent to the working conditions or oddities of a

seaman’s life will be resented and may jeopardize the information seeking process.

Seamen work extremely odd hours and when contacting potential witnesses, counsel

needs to be flexible and keep in mind that it may not be a solely daytime endeavor. Frequently,

a third or more of the vessel’s workers will be sleeping during the day since there are two

watches that fall within the midnight to 8:00 a.m. time spectrum. The first watch is 12:00 a.m.

to 4:00 a.m. and the second watch is 4:00 a.m. to 8:00 a.m. Workers that stand a watch will

cover these hours on both an a.m. and p.m. basis. For example, a third mate may work the 12:00

p.m. to 4:00 p.m. shift and then at midnight report for his second watch from 12:00 a.m. to 4:00

a.m. This makes sleeping normal hours impossible. Therefore, the attorney and its staff must be

cognizant of this fact when attempting to contact shipboard witnesses.

When contacting witnesses via telephone, many vessels lose telephone service at various

times during their voyage so alternative means of communication must be utilized. Today, most

32

vessels have computers with e-mail capability and fax machines to send urgent messages.

Counsel needs to keep in mind that ship-to-shore and cellular telephone communication is by no

means secure and therefore, should not conduct sensitive investigations through such means.

CASE INVESTIGATION

One must adequately investigate the sources of discoverable information on the seaman’s

claim. As to private records subpoenas can be utilized depending upon the jurisdictional statutes

of the state. It is a useful method to obtain records from nonparties to the litigation. Court

reporters and record deposition services can draft and serve the subpoena. However, counsel

must be cognizant that subpoenas are not enforceable unless they have been drafted and served

in accordance with Civil Rule 45. These services are more expensive than preparing subpoenas

in house. Charges of $.50 to a $1.00 per page and a separate subpoena fee are typical. These

services also restrict access to the records unless each party has purchased the copies from them.

Therefore, multiple litigants will each have to pay a separate fee for the same documents.

INTERVIEWING WITNESSES

Witness procurement is a challenge and must be done as soon as the attorney has taken

the case. Witnesses may be located by requesting a crew list for the offending dates of the

statutory work hour violations from the entity that employs and manages the crew.

Seamen’s articles are an alternative source, but the crew signs on and counsel will need to

track when such person was replaced by another and on what date. Seamen’s articles usually

encompass thirty days of service and memorialize the date signed on and off by the crew. The

request for the crew list or seamen’s articles will be opposed until suit has been filed. Serve

requests for these lists with the complaint so that the information does not become stale.

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Remember seamen are a transitory lot and one must safeguard against them disappearing to new

job assignments by acting quickly to discover their identities. Seamen move from company to

company depending upon where the union has job openings and some may travel the world to

work in a particular trade.

If a witness has documents or statements that are vital to the attorney’s case, in order to

protect against losing the witness, the case should be immediately filed and the witness’

deposition taken, so that if the crewmember becomes “unavailable” at time of trial as defined by

the applicable rules for federal or state court where the action is pending, the deposition may be

used in the place of live testimony at trial.

It is not recommended that an investigator be utilized unless he has some specialized

knowledge of the industry and as a result enjoys a special relationship with possible witnesses. It

is better for the attorney handling the case to interview and talk with the witnesses since most of

them will not be familiar with the legal system and will have a natural reluctance to assist

counsel. The attorney handling the case must build a rapport with the witnesses so that they

know if the case proceeds to trial, the attorney with whom a rapport has been established will be

questioning them at trial.

In instances where the Coast Guard is pursuing a suspension or revocation action, it is

imperative that immediate access to corroborating witnesses or personnel be had. If the

proceeding becomes criminal in nature, counsel must be diligent to collect evidence that will

assist the claimant. The attorney will interface with Coast Guard officers that have filed or

investigated the charge against the crewmember. Since the hearing can be penal in nature

because the Coast Guard is seeking a suspension and/or revocation of the subject’s license or

ticket association with one familiar with such hearings is vital.

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As to finding shipboard witnesses and preliminarily recording their recollections, a form

letter can be sent in care of the port of call they frequent or can be sent to their union hiring hall.

WITNESS CORRESPONDENCE

A suggested format to solicit cooperation follows:

Dear____________

I represent Mr. Seaman in an accident, which occurred on July 19, 2000, while he was

aboard the Str. Lawsuit. I understand that you were aboard the day and worked with Mr.

Seaman.

I am investigating Mr. Seaman’s claim and would like to interview you at your

convenience to discuss the facts and circumstances surrounding the accident. Mr. Seaman was

seriously injured as a result of being forced to work in excess of work hours set by federal law. I

would like to ask you about the hours that he, and you worked that day and for the days leading

up to the accident. If you could have your work hours available for the week before the accident

I would like to ask specific questions about them.

You are not in any trouble and talking with me will not jeopardize your position with the

company you work for. Please call me collect at 555-5555. I look forward to hearing from you.

Alternatively, you may write on the back of this letter your recollection of the facts surrounding

the accident and your tally of work hours for the week before the accident. Please provide a

phone number and time I may reach you to follow up on your comments. I have enclosed a

postage paid return envelope for your use. Thank you.

LAW FIRM, PLL

35

WITNESS TESTIMONY

There are three different ways to formally record a witness’ testimony: statements,

depositions, or bringing the witness in live at trial. The risk of procuring a signed statement of

the witness is that at some juncture you may have to turn it over to opposing counsel. Case law

examines the timing of when the statement was taken and how contemporaneous to the incident

it was taken and how hard is it to replicate by the opposing party. Timing becomes much more

important in a collision or other disaster where memories are freshest at the time of the incident.

To a lesser degree the statement in a case of statutory work-hour violation becomes more of a

focus upon memorializing who said what to whom. If the opposing party can easily replicate the

evidence, it is likely that the court will resist disclosure.

If the witness appears to be friendly, it makes more sense for the attorney to take notes of

the conversation to invoke the attorney work product privilege. Once the witness has signed the

statement, it becomes subject to disclosure as dictated by the trial court judge.

A signed, witnessed and notarized statement becomes useful if the attorney believes that

a particular witness may turn hostile and wishes to make a record of testimony to use as

impeachment at trial if the witness later contradicts such testimony. If the witness has helpful

testimony and the attorney wishes to memorialize the testimony in the event that the witness is

out of the jurisdiction or unavailable at the time of trial, a deposition is the method to use. The

opposing attorney is able to cross-examine the witness and cannot complain later at trial.

Remember, seamen are a transitory bunch and, as with any witness, the attorney must

contend with the possibility of the witness’ unavailability at trial due to illness, infirmity, death,

or some other reason keeps the witness out of the jurisdiction.

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Finally, the most expensive, but also most effective is to present the witness live at trial.

This works well for those seamen who have a stable home base and have worked long term with

one company. The attorney must be vigilant to get current addresses and phone numbers and

phone numbers of contact persons in the event that the seaman has relocated or taken

employment that may make him otherwise impossible to locate.

The advent of personal computers and the Internet has created effective skip tracing tools

to track virtually anybody. The more information that you can get about your witness, the easier

you will be able to locate the witness.

UTILIZING THE EXPERT

In a case where there has been a statutory work hour violation, a marine expert best fits as

the source of liability proving testimony. The expert witness must have the proper educational

background, preferably from a maritime academy. Post-graduate work lends a higher degree of

credibility and career work on commercial vessels is the best fit for this type of case.

An expert who has served in the Coast Guard, particularly in marine safety, would be an

ideal fit to provide a clear picture to the jury as to why there is a statute setting work hour

limitations. Congress has indicated safety of the workers as the purpose of the statute. Since

safety is of the paramount concern, a marine safety expert can assist the attorney in preparing

and prosecuting a successful case. The marine expert should be contacted at the outset of the

case because there are so few qualified experts that will work for either side. It becomes an issue

of who first retains them. Secondly, the marine expert can assist in the fact gathering process to

ensure that facts supporting liability and not allowed to escape investigation.

The ex-Coast Guard marine expert can also interface with the Coast Guard in either a

disciplinary hearing or if a casualty or injury was reported and investigated by them. In cases of

37

collisions, often the report will have factual analysis and conclusions after the Coast Guard has

completed the investigation.

As to the use of Coast Guard reports in litigation, only the factual portions of them are

admissible in court. Any conclusions of the investigating officers are not admissible. The report

is limited to the facts presented, not the conclusions made. <American v U.S. 418 F 2d 180>. It

is the fact finder’s function to draw its own conclusions, and as such the fact finder should not be

influenced by a prestigious official report. <Warren v. Thomasson 268 F 2d 5>. The court in

<In re American Export 1977 AMC 2632> reasoned that Coast Guard reports are designed under

46 CFR 4.07(b) to take appropriate measures for promoting life and property at sea and are not

intended to fix civil or criminal responsibility. A recent case has reinforced the prohibition

against the admission of conclusions in an investigative Coast Guard report. <Huber v. United

States, 838 F2d 398>.

The Coast Guard marine expert should be familiar with the mandates of the Marine

Safety Manual, particularly chapter twenty which dictates the general provisions for vessel

manning. The chapter contains the guidance for correct uniform application of statutes and

regulations that pertain the manning of both uninspected and inspected vessels. Coast Guard

marine safety personnel consult this manual to determine vessel-manning compliance under the

legislative scheme. The general regulations that complement the work hour limits statute can be

found in {46 CFR 15, subchapter b, Merchant Marine Officers and Seamen.} Other specific

classes of vessels are located in other subchapters within that section, and vessels operating on

the U.S. Outer Continental Shelf are contained in {Part 141 of Title 33, subchapter N}.

The expert should obtain the certificate of inspection for the vessel, which states the

minimum number of licensed officers and certificated crewmembers necessary for the safe

38

operation of inspected vessels. {46 USCA 8101 and 46 CFR 15.501}. Uninspected U.S.

merchant vessels are subject to the manning requirements of {46 USCA 8103, 8104} and other

subsections within the statute. If the claim is related to an alien’s right to serve upon a United

States documented vessel consult, {46 USCA 8103 (a) and (b).} A U.S. citizen only, can serve

as master, chief engineer, radio officer, or officer in charge of a deck watch or engineering

watch. Aliens can be unlicensed personnel as long as they are lawfully admitted to the United

States for permanent residence, and not more than 25% of the total number of unlicensed seamen

on the vessel may be permanent resident aliens; {43 USCA 1356} imposes U.S. citizenship

requirements on specialized vessels. There are a number of exemptions to the citizenship rule.

{46 USCA and 43 USCA}

The statute on work hour limits does allow a master to sail short, or not follow the

requirements under limited circumstances. At the outset of the voyage a vessel should have the

proper number of seamen. This can be checked on the Shipping Articles. The vessel may sail

short if the master has made reasonable effort to replace the vacancy and has been unable to do

so through no fault of his own. The vacancy must have occurred without fault by the responsible

party under the statute. Finally, the master must be able to conduct the voyage safely.

Discharges related to vacation or convenience factors are not proper reasons to sail short, but

illnesses, desertion, etc will qualify as acceptable excuses to sail short.

At each port of call the master must make an effort to find a qualified replacement. In

every instance of sailing short, a report must be provided to the Coast Guard. The expert should

be on the lookout for receipt of these reports through a FOIA (Freedom of Information Act)

request.

39

Marine experts will expect to be paid a reasonable billable hour, but some will forbear

from collection of their fee until the case is concluded by verdict or settlement. It is imperative

that financial arrangements be discussed and agreed to early in the case so that the expert is

effectively utilized during the preparation phase of the case.

FILE ORGANIZATION

The following checklist is done at the time a file is opened and is to be appended

to the inside of the first file pocket.

1. Parties

2. Statute of limitation

3. Date suit filed-Jury demand

4. Answer(s) and dates filed

5. Admissions / responses and dates filed

6. Written discovery / responses and dates filed

7. Deposition - date taken, key testimony, and pages where testimony is located

A. Plaintiff

B. Witnesses (list)

C. Experts

8. Contested factual issues

9. Contested legal issues

10. Daubert motion due date

11. Case management conference date

12. Settlement conference date

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13. Final pretrial conference date

14. Discovery cutoff date

15. Dispositive motion cutoff date

16. Expert and other disclosure dates

17. Trial date

18. Append copy of court’s trial order

The following is the physical arrangement of each file pocket at the time of trial:

File pocket 1

Correspondence

Pleadings

Our trial documents

Opposing trial documents

Answers to discovery

Law

Sailing record

Company safety rules

Photographs

Logbook entries

File Pocket 2

Fact and medical witness files to include question outline, exhibits, discovery and trial

depositions with summaries and objections and responses noted

41

File Pocket 3

Medical file with documents in date order and separate record custodian affidavits and separate

doctor and hospital records

File Pocket 4

Documents produced to opposition with bates stamp numbers to track the numerosity

Documents not produced to plaintiff

Company personnel records

Investigation file to include all witness related items and third party investigations including

insurance claims, other employment records and previous injuries

LIMITATION OF ACTIONS AND SELECTING FORUM

To commence an action under the statutory work-hour limitation, counsel should be

cognizant of the underlying statute of limitations for Jones Act actions {46 USCA § 688}.

Various courts have held that there is no private right of enforcement pursuant to {46 USCA §

8104}. The courts believe that Congress did not convey any right to individuals to pursue a

private right of action based upon violations of the statute. The purpose of the predecessor to

{46 USCA § 8104} was to promote safety at sea rather than regulate working conditions.

Historically the courts did not vacillate from the plain language of the statute.

Cases for violation of statutory work hours will be filed under general maritime law and

should follow a statute of limitation period that will not subject plaintiff to a claim for laches.

However, courts have denied private rights of action for related actions such as wrongful

42

discharge following a refusal to sail under conditions, which the seaman believed, would violate

{46 USCA § 8104}. The statute’s requirement was that vessel operation be restricted to 12

hours within a 24-hour period. The plaintiff alleged that he was terminated because of his

perceived violation of the statute if he sailed.

<Feemster v BJ-Titan 873 F 2d 91>.

The court found that the duty of enforcement under {46 USCA § 8104} was empowered

to the Commandant of the Coast Guard, which has the duty to protect the health and welfare of

seamen by invoking a penalty against those responsible for failing to follow the requirements of

the statute.

When examining the viability of a statutory work violation claim, one must examine

whether there is privity of knowledge on the part of the owner. In instances where a seaman has

neglected to perform his duties the owner, charterer, or managing operator are not liable under

the statute. However, the statute will impose liability against the foregoing parties if an owner,

charterer, managing operator, master, individual in charge or other person having authority

permits an officer to take charge outside the strict hourly confines of the statute. There must be

privity of knowledge to sustain an action. < Peace v. United States 278 F 180>. Standing to file

suit must be examined, particularly if third party organizations or individuals are asserting the

rights of the workers, such as a labor organization which may represent the engineers or deck

department. Such organizations have been shown to have standing to sue to compel the

enforcement of statute as it governs safety watches. The risk of injury that ensues from failure to

enforce the statute, which was enacted precisely for the protection of seamen, gives the

organization standing to sue. <MEBA v Adam 447 F Supp 72>.

43

Selecting the forum can be a difficult call for the attorney. There are state and federal

courts within certain jurisdictions that present a better forum for seamen’s claims. The

practitioner must research possible forums for those, which have been inclined to recognize a

private cause of action by the seaman for violations of this section. Generally there should not

be delay in the accrual of the action due to the action vesting at the time the violation, dismissal

or when the accident occurred.

If there is an underlying claim beyond wages and immediate release from the vessel as

the statute provides, such as a discharge from employment or a collision that occurred as a result

of a statutory work violation, counsel must be aware of the additional claim contemporaneously

with the incident. The instances in which there may be some delay are cases where the seaman

was overly fatigued from working hours in excess of the statute and may have suffered injuries

and/or death in part, as a result of statute violation. In particularly injury claims, counsel must

allow for the delay inherent in complete healing or plateau of the seaman’s medical condition. If

the claim is prematurely filed before the condition has stabilized or has reached its degree of

permanency the plaintiff may either have to dismiss and refile within any applicable statute of

limitations or may lose valuable damages related to permanency, future medical treatment, lost

wages, and pain and suffering.

Typically cases that are brought under general maritime law can be filed in either federal

or state courts. However, the availability of a jury on a general admiralty claim is by no means

assured. If the action is brought under the Jones Act, it can be filed in state court and cannot be

removed to federal court. If the underlying action is filed under the Jones Act, the seaman can

take advantage of {28 USCA §1916}, which waives the pre-payment of fees and costs when

44

filing in federal court. It is preferable to file a claim in state court due to jurors that will come

from demographics more closely identified with the seaman’s.

In admiralty, the judge will generally sit without a jury, except in a general maritime law

claim arising upon the Great Lakes. In those cases, either party can demand a jury trial. <In re

Great Lakes Towing 395 F Supp 810>. If a forum is located adjacent to an active port, counsel

should file there because the local economy relies upon shipping and favorable demographics

should exist so that recovery is maximized on a seaman’s claim. If the time a case takes to

proceed to trial is a consideration, federal courts offer expedited dockets to assist counsel to trial

on a shorter timeline. Depending upon the court in which counsel chooses to file, the handling

of motions can vary from automatic hearings that are scheduled for every motion to hearings

only as requested by the court. Such considerations are vital to maximizing the possible recovery

on behalf of the claimant. A sample Complaint for a Jones Act/work hour limit case follows:

COMPLAINT AND DEMAND FOR JURY

Plaintiff, by and through his counsel undersigned, LAW FIRM, PLL, and for his

Complaint against the defendant states the following:

1. Jurisdiction and venue are within this Court pursuant to {28 USCA §1333(a)} [or

other applicable statute]. Plaintiff is filing this case against defendant pursuant to the Jones Act,

{46 USCA § 688}and {46 USCA § 8104} alleging that plaintiff has suffered an injury and

resulting damages due to overwork and other acts due to defendant’s negligence.

2. Plaintiff files this action pursuant to {46 USCA § 688} the Jones Act, alleging

that he suffered an injury as a result of defendant’s negligence as his employer, and pursuant to

{46 USCA § 8104} on the basis of defendant’s mandate that he work in violation of statutory

work hours set forth therein [and any other statutes to which relief is sought].

45

3. Defendant owned, operated, chartered, or was the managing agent of a vessel

known as the Str. Lawsuit, upon which plaintiff was employed as a deckhand and member of its

crew.

4. On or about July 19, 2000, while plaintiff was employed in the position of

deckhand aboard the Str. Lawsuit, plaintiff was required to work more than 12 hours of each 24-

hour day, although there was no emergency which threatened life or property, for a period of

twenty one days. As a result of the overwork, plaintiff was attempting to pull a line to dock the

vessel, and injured himself sustaining permanent injuries to his knee as a result of the negligence

of defendant, who failed to provide adequate crew to work the mandated hours {46 USCA

§8104} and failed to provide sufficient manpower to adequately dock the Str. Lawsuit.

5. Defendant owed a duty to plaintiff to not exceed the statutory work hour limits as

set forth in {46 USCA §8104}. It breached such duty through its compulsion of assigning

plaintiff to work in excess of the work hour restrictions.

6. As a result of defendant’s negligence and willful violation of {46 USCA § 8104},

plaintiff has suffered damages in the form of medical expenses now and in the future; pain and

suffering now and in the future; lost earnings and future lost earning capacity as a result of his

disablement; and other elements of damage which will be proven at trial of this matter.

WHEREFORE, plaintiff demands trial by jury and a judgment against defendant in an

amount in excess of Twenty-Five Thousand Dollars ($25,000.00), together with interest, costs

and attorneys’ fees, which will be assessed at the time of trial.

Respectfully submitted,

HOWIE CHEATUM

46

ANSWER

A sample answer follows:

DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT

Str. Lawsuit manager, defendant herein, by and through its counsel, in answer to

plaintiff’s Complaint states:

1. It admits the allegations contained in Paragraph 1 as to jurisdiction and venue, but

denies the remaining allegations thereunder.

2. It admits that there are statutory causes of action under the Jones Act and as to

statutory work limitations, but denies the remaining allegations contained in Paragraph 2.

3. It admits that it manages the Str. Lawsuit, but denies the remaining allegations in

Paragraph 3.

4. It denies the allegations contained in Paragraphs 4, 5 and 6 of plaintiff’s

Complaint.

5. It denies each and every allegation contained in plaintiff’s Complaint not

specifically admitted or denied herein.

AFFIRMATIVE DEFENSES

1. Plaintiff’s Complaint fails to state a cause of action upon which relief can be

granted as to the event(s) specified therein.

2. Any injury of which plaintiff complains was proximately caused by plaintiff’s

own negligence and want of care and not by any negligence or fault of the defendant.

3. Plaintiff’s Complaint is barred by the applicable statute of limitations and/or the

doctrine of laches.

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4. Plaintiff has failed to reasonably mitigate his damages.

WHEREFORE, having fully answered plaintiff’s Complaint, defendant prays that the

same be dismissed with prejudice and that it recover its costs and expenses, and that it be granted

such relief to which this Honorable Court deems it may be entitled.

Respectfully submitted,

WE DEFEND, PLL

By______________________________

CATEGORIES OF CLAIMS

To consider the types of claims that seamen may have pursuant to {46 USCA § 8104}

refer to the background set forth herein. The statute provides remedies for violations of

subsection (a) or (b) in the amount of a $10,000 civil penalty. If the owner, charterer or

managing operator of the vessel violates subsections (c), (d), or (h) it is liable for a civil penalty

of $10,000. The seaman is entitled to discharge from the vessel and the immediate receipt of

wages.

A claim for retaliatory discharge by a seaman can be filed under the general maritime

law. To survive summary judgment, the plaintiff must allege more than the fact that a sailing

trip would prospectively violate section 8104. The court will examine whether there exists a

private right of action, based upon whether there is a clear indication that the discharge from

employment offended public policy. For example, filing an underlying Jones Act claim against

an employer that later discharges the seaman may create an exception to the employment at will

doctrine and allow the court to sustain the suit. In employment at will situations, the employee

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can be discharged for any reason or none at all, including one that is morally reprehensible

except where the discharge would otherwise offend public policy.

The congressional intent behind the statutory work hour limit was one of maritime safety

and the focus of the legislation was not to create in the seaman a private attorney general to

prosecute violations of the statute. The United States Coast Guard was envisioned as the

enforcer of maritime safety. The predecessor to {46 USCA §8104} was enacted to promote

safety at sea rather than to regulate working conditions and courts have been reluctant to stray

from the plain language of the statute. <MEBA v Adams 447 F Supp 72>.

Another public policy argument to make is that violation of statutes that protect the

environment or prohibit unseaworthy vessels from sailing if such would endanger an individual

life should enable a seaman to refuse to sail and individually file and maintain a claim.

Investigate the cargo, fuel etc. and any mechanical malfunctions that may have compromised the

seaworthiness of the vessel. The toxicity of a potential spill will be hard for a court to ignore if it

is the basis for a legitimate refusal to sail. Related statutes that protect a whistleblower may be

used to assert an action for retaliatory discharge. {46 U.S.C.A. § 2114} forbids retaliation

against seamen that are about to report safety violations to the Coast Guard. Inquire of the client

whether one can take advantage of these exceptions through the seaman’s actions at the time of

the work hour limit violation.

Cases that arise out of the federal admiralty law will preempt any state law claim. The

U.S. Constitution Art III, §2 provides that the judicial power shall extend to all admiralty cases,

maritime jurisdiction. The courts have sought to provide uniformity of application throughout

the nation as a central purpose and feature of this exclusive jurisdiction. State law will be used

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only when there is no admiralty rule on point and when doing so does not undermine uniformity.

<Byrd v Byrd 657 F2d 615>.

In cases of Jones Act negligence and unseaworthiness, plaintiffs have used violations of

statutory work hours to link a cause of action to injuries or death resulting from overwork. There

must be proof that the work schedule contributed to the injury or death in a substantial manner.

Volunteering to work overtime will be a valid defense to defendant on the basis that if plaintiff

chose to work such hours, ship owner should not be held accountable for an unfortunate

outcome. However, medical evidence linking fatigue or inattentiveness due to overwork to an

accident can be effective evidence of a causational factor to impose liability. The situation must

be one where the ship owner compelled such overwork and there was no emergency or other

valid excuse, which would defeat finding a violation of the statute.

For example, in a claim for which overwork was responsible in that plaintiff was unable

to lookout for his own safety and perhaps had fallen overboard, medical evidence or witness

corroboration that plaintiff was seriously compromised in his ability to do that which would have

prevented his death will have to be present in order to defeat exoneration of the ship owner or

manager of the vessel.

Claims for statutory work violations can arise in conjunction with a collision. These are

actions for damages related to repair or replacement of the vessel, and pollution, dock, or private

aid damages. In cases of statutory work hour violations, the party aggrieved can seek application

of the Pennsylvania Rule. When a vessel, at the time of the casualty, is in violation of a statutory

rule intended to prevent the occurrence, the burden rests upon the vessel to show that its fault not

only was not, but also could not have been the cause of the loss. Application of the Pennsylvania

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rule shifts the burden of proof as to causation to the statutory offender. The savvy practitioner

will work to prove a Pennsylvania rule case to shift the burden of proof.

PARTIES TO THE ACTION

Various individuals and entities are liable for violations of the statutory work hour

statute. Owner, charterer, or the managing agent of a vessel can all held accountable for

infractions of the statute. In most cases, it will be the employer that suit will be initiated against

because it was the party that dictated the hours the seaman was to work. It will typically be the

employer’s personnel manager that deals with the manning requirements of the vessel(s) and will

direct the hours to be worked by the seamen. However, a master or other supervisory individual

may be the one setting the work hours and this will still support liability against the foregoing

parties.

The identity of the entity to file suit against is complicated in these cases. The attorney

will want to look at American Bureau of Shipping records to determine the owner of the vessel.

A management company often will be retained by the owner to operate and manage the vessel.

The statute allows for accountability to flow to all parties, but suit should be restricted to the

entity responsible for directing the manning requirements and hours of the crew.

SETTLEMENT TECHNIQUES

Plaintiff’s counsel needs to prepare the case from the outset with an eye towards

settlement, especially early in the litigation to avoid costly expenses in case preparation and time

expenditure beyond that anticipated to be supported by the damages recovered for the plaintiff.

The first tactic is the use of a demand letter directed to those upon which liability will be

asserted. This can be done after counsel and the expert have investigated the claim and have

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calculated the damages. To calculate lost wages and estimated annual after tax earning capacity

in cases of ongoing disability, the following formula can be used:

Past lost earnings equal years off of work multiplied by the average annual gross earnings

minus average business expenses and deduction of average yearly taxes.

Future lost earnings can be calculated by increasing the yearly gross base salary by the

collective bargaining agreement increases for each year and making the foregoing adjustments of

business expenses and yearly taxes. The work life expectancy must be calculated by using a

combination of the Department of Labor work life statistics and industry standards on work life

of the particular occupation upon which damages are sought. The lost earnings are then

calculated for the remaining work life and reduced to present value in order to calculate

settlement value. The tax treatment of damages is ever evolving, but care should be taken to

divide the damages between those devoted to pain and suffering and other intangibles, and those

devoted to replacing lost compensation as a result of an injury or death.

If the case is strictly for wages under the statutory work hour limitation regime, the

calculation will involve those wages due to the seaman along with applicable contributions to

benefit or vacation plans based upon earnings. Often the seaman will have been paid what he

was entitled to by way of wages, but the violation of the work hour limitation will factor into

causation as to an underlying accident, collision etc.

A demand letter to use in an injury case follows:

Ms. Insurance Adjuster

OUR FILE 000

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Dear Ms. Adjuster:

As you know, we represent Mr. Seaman in regard to an accident that occurred on July 19,

2000, as a result of his fall aboard the Str. Lawsuit. We previously provided copies of various

Coast Guard reports and have generally discussed this case with you. We believe it would be

prudent for all concerned to attempt to settle the claim at this time in order to avoid prolonged

litigation. We would like to work with you to reach a potential settlement, if at all possible.

LIABILITY

Mr. Seaman was a deckhand on the Str. Lawsuit, owned and operated by your insured,

Global Ship. Mr. Seaman was docking the vessel at St. Joseph, Michigan, and sometime

between 8:45 and 9:00 p.m., he fell while attempting to assist the boat in docking. The master

notified the Coast Guard who instigated a full investigation.

Just prior to docking, Mr. Seaman had worked seven days straight and averaged 19 hours

per day. He was not afforded the requisite rest periods as dictated by {46 USCA § 8104} and as

a result, he was fatigued and unable to look out for his own safety. He fell aboard while docking

the vessel. There is no evidence of any fault by him whatsoever. Global Ship had a duty to

follow the dictates of the statute, which was enacted to bolster seaman safety. Global Ship

breached its duties in several respects and its actions constituted the proximate cause of Mr.

Seaman’s injury. First, by its failure to follow the statute, it rendered Mr. Seaman so fatigued

that he could not properly do his job. It knew that Mr. Seaman would be docking the vessel and

did not allow him adequate rest or an adequate number of crewmembers to assist him in his

tasks.

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Further, Str. Lawsuit does not fall within one of the exceptions to excuse its sailing short

and subjecting the crewmembers to prohibitive hours. The vessel was not in an emergency

situation. These hours inflicted upon Mr. Seaman was attributed to business as usual at Global

Ship. We have discovered that 75% of the other crewmembers aboard at the time of Mr.

Seaman’s injury had also violated the limit on work hours during this voyage.

DAMAGES

As a direct result of Global Ship’s negligent actions, Mr. Seaman have incurred

significant damages. Of course, medical expenses for Mr. Seaman are $21,222.00. Mr. Seaman

has significant pain and suffering. He has no kneecap anymore, and cannot run, jump, squat or

stand for long period of time.

Mr. Seaman has been with the company for over 20 years, and it was anticipated that he

would continue until his retirement. Mr. Seaman’s salary for the three years preceding his injury

averaged $68,200.00. He was almost 57 years old when injured and, if he worked until the

normal retirement age of 65, would have had eight years of additional wages at or above that

level. Even reducing the loss of support to present value, as a jury would be required to do, it

yields a figure approaching $500,000. His pension, retirement, and other benefits that have been

lost are estimated at 20% of his net pay. Again, a six-figure award by a jury for this element of

damage would not be excessive.

Our demand is policy limits in this case and we would like to discuss this matter in more

detail with you and look forward to receiving your response.

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Very truly yours,

LAW FIRM, P.L.L.

As the case develops and the investigation is completed, a settlement brochure or

settlement brief for the court and parties to use is vital in maximizing the recovery. The

settlement brochure should be used with insurance adjusters, arbitrators, mediators, etc. It

should not cite case law, but should be fact and figure specific. The background of the plaintiff

should be set forth including the last four to five years of earnings and fringe benefits for all

employment held by plaintiff.

The medical portion should set forth a tally of all medical expenses, pertinent portions of

medical testing and reports by the treating doctor. In a death case the autopsy report of the

coroner should be appended. Photographs or a video recording of the injuries suffered by

plaintiff should be depicted. In death cases, pictures or video diaries of the surviving family

relationships should be depicted for loss of consortium or companionship cases.

Other expenses including funeral bills, or in injury cases on modifications to structures

etc. to accommodate the injury that plaintiff suffered should be produced.

Any publicity surrounding the case should be appended. Particularly in death cases,

obtain newspaper coverage and video of any local news channel that covered the incident.

Documentation or reports related to earning capacity impairment and wage loss

information from the employer. If the injured must retrain or change occupations, obtain the

report of a vocational rehabilitation specialist.

In a descriptive passage, summarize the testimony of witnesses that support plaintiff’s

claim. The first section should set forth the facts of the incident with citations to the witness

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testimony; next a summary of defendant’s negligent acts with testimony highlighted; and finally

a summary of testimony related to the damages sought by plaintiff.

The roles of the authorities for settlement will frequently be the vessel’s insurance

adjuster or in cases where only the wages are due and there has been no other injury or death, the

claims person for the shipping company taking responsibility for the manning and hours worked

on the vessel will be the point person.

If working with the claims person from the company, ask technical questions to

determine what authority and autonomy the person harbors. Asking for the facts to support a

particular position or the authority to take a particular stance can flush out the experience and

authority that the claims person has within the organization. Ask if there is a limit on authority

and what the next level entails. Do you talk to a supervisor, is the board of directors convened to

approve a settlement, or is it the position that suit must be filed to obtain monetary settlements

exceeding some preset level.

By asking pointed questions one can uncover witnesses that may be destructive to your

claim early on or a weakness in the opposition’s position that can be discovered and exploited.

In cases involving wage claims only, as due under the federal law, remember that if the

appropriate authorities find out about the violations there is a $10,000.00 fine per violation. The

penalty becomes a strong motivating factor to make the whole claim go away.

If an independent adjuster hired by the insurance company is on the case, the presentation

by plaintiff’s counsel will not differ remarkably, but they will tend to be better prepared and will

have completed an independent investigation. The independent adjuster is used for foreign

protection and indemnity companies and smaller domestic companies. Frequently, these foreign

companies historically have written insurance coverage for vessels so dealing with the

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independent adjuster will be almost assured. Further, independent adjusters will be used by

companies that have a large self-retention amount on a risk to investigate and adjust claims. The

independent adjuster is more diversified than a company claims person because of the wide

variety of claims adjusted and the fact that it is the job the adjuster does day in and day out.

The authority of the independent claims adjuster is limited as in every other case. As the

claim increases, supervisors and senior claims specialists must be consulted and they must give

approval. Due to the tight control on authority it can present a challenge to the negotiating

attorney to get an answer. One should be prepared that the adjuster will have to check with a

supervisor for approvals on claims.

Insurance companies through their adjusters and attorneys must establish loss reserves for

claims that cannot be settled at the outset. The loss reserve should be as accurate as possible and

in the case where it has been ratcheted upwards from the outset, it presents more pressure on the

claims adjuster to settle the claim because it may have been undervalued at the time the reserve

was set or tightening controls on the claim have not been accomplished.

In dealing with any kind of adjuster it is imperative to always be polite and to not stray

far from business. Try to maintain a friendly manner and keep communication open between

the players. One can detract from a speedy settlement of a claim by angering the adjuster or

superiors. At that juncture the willingness to work out a compromise becomes all the more

difficult. Be prepared and know every nuance of your case and be able to answer questions at

the time of inquiry. However, it is not the job of counsel to point out problems with the case,

that is the adjuster’s job. If the conversation is taking an unpleasant turn, the key is to terminate

the communication lest the wrong statement escapes and taints the claim. A new day can bring

new perspective and perhaps some compromise.

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In a case where it will be necessary to file suit, maintain the rapport with the adjuster so

that if settlement presents itself, counsel can talk with the adjuster and not rely upon the good

graces of defense counsel to settle the claim. Always let the adjuster know that if some factual

or legal analysis changes that a call to you with this information could foster a settlement.

The use of settlement formulas in seaman’s cases differs from the typical auto accident

claim. If wages are the only element of damage the calculation will be the amount due under the

work hour limit statute. The seaman is entitled to his wages and immediate discharge from the

vessel. The wages are calculated by referring the any collective bargaining agreement amounts

for overtime, vacation pay, benefits etc. In the event of a nonunion worker, it will be calculated

using the base and overtime rates as set by the company. If benefits are calculated based upon

hours worked a corresponding adjustment will need to be made to include all benefits due the

seaman.

Formulas for personal injury claims will first need to assess the liability aspect of the

claim. Is the jury or fact finder capable of assessing liability against the defendant and to what

extent. Does plaintiff have some culpability in his actions. For instance for the four days

leading up to his accident, was it plaintiff that requested he work extra overtime to earn more

money. If it was plaintiff that volunteered to work the overtime and had an accident as a result,

there is strong likelihood that the case would be summarily dismissed because plaintiff was the

maker of his own misfortune.

Counsel needs to analyze how much each of the parties will appeal to the jury and how

they will testify and of course how well they can withstand cross-examination. A balance

between the severity of the claim and the attendant expenses should have been done at the outset

to determine how far counsel should take the claim. Particularly with respect to expenses that

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are reimbursed as a result of insurance, the insurance counsel will likely pursue subrogation and

it must factor into what will have to be repaid at settlement of the claim. Also counsel must be

aware that if the amount is sizeable, the insurance company will often require that it consent to

any settlement.

Finally, esoteric factors such as the make up of the jury pool in the particular court that

the action is filed, whether the judge is plaintiff or defense oriented, and the relative skill of

opposing counsel are important considerations in assessing the value of the claim.

The use of a multiplier on specials to calculate damages is not reflective of the true value

of an injured seaman’s claim. In seaman’s cases, the low threshold of the burden of proof under

the Jones Act tends to drive the value of the claim higher than in an ordinary negligence case.

The best predictor of the value of the claim is to consult a verdict reporter or bar or legal

association that maintains such figures. Recent verdicts in similar cases and courts can offer

assistance in settling a claim by illustrating to an adjuster what the fact finder had considered in

the case to assess the value of the claim.

ALTERNATIVE DISPUTE RESOLUTION

The use of alternative dispute resolution techniques can be useful in claims that have

been filed, or in which the parties wish to avoid protracted litigation. The use of an early neutral

evaluation by a competent individual that has experience with seamen’s cases is helpful. The

appreciation of the job that a seaman undertakes every day combined with a knowledge of the

law and how it relates to a seaman’s claim is imperative in reaching an accurate figure. The

early neutral evaluation is best done when the first round of interrogatories and production of

document requests have been answered. The witnesses will have already been interviewed so

that counsel knows how the evidence in the case has developed. As with other alternative

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dispute resolution mechanisms, counsel should never stipulate that it is to be binding on either

party.

Mediation or arbitration are useful methods to obtain a valuation or input from other

attorneys in the community. Arbitration uses local attorneys, usually three in number, from both

sides of the defense and plaintiff’s bar. The local court will set the upper limit on the amount

that arbitrators can award. There is a huge margin of error with arbitrators because frequently

the value of the case varies wildly between panel members based upon whether they practice

predominantly plaintiff or defense work. The end result is often due to a compromise between

the arbitrators.

The American Arbitration Association provides arbitrators for hire in instances of

binding or nonbinding arbitrations. The cost is higher than court ordered arbitration because the

arbitrators are billing by the hour. It is best to determine the costs of this alternative up front.

The advantage to retaining a professional arbitrator is that counsel can seek out someone with

experience valuing seaman’s claims. The disadvantage is that if the claim is particularly

appealing to a jury, counsel will give that advantage away by agreeing to binding arbitration. The

lesson to be learned is to not give away any rights of the client without authorization from them

to waive their right to be heard in a legal forum.

Mediation is an overused term and some courts use it much like the arbitration scheme

set forth above. For use in this article we will interpret mediation to mean utilizing an objective

third party to attempt to bring the parties together to accomplish a settlement. The mediator

needs to be experienced with seaman’s claims and the applicable law so that candid discussions

occur. The mediator will consider the strengths and weaknesses of plaintiff and defendant’s case

and will counsel each privately to attempt a resolution. Settlement figures are disclosed and the

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mediator attempts to bring the parties to a resolution by advising the parties as to the problems of

their respective case if it were to proceed to trial. The advantage of a mediator is that it is a low

cost method of obtaining a resolution or in the event that a resolution is impossible at that

juncture it gives the parties and counsel a glimpse at the problems in the case and how an

objective third party views it.

DISCOVERY

The starting point for discovering information for the seaman’s claim on a statutory work

hour violation is to propound interrogatories and production of document requests. Illustrative

interrogatories and production of document requests for the seaman injured because of fatigue

due to working hours in excess of those allowable under {46 USCA §8104} are set forth below:

PLAINTIFF’S INTERROGATORIES DIRECTED TO DEFENDANT

1. State the name and address of the person(s) answering the interrogatories and if

applicable employer and position.

2. Identify the individual responsible for maintenance and custody of employment

records and personnel files of plaintiff.

3. State the dates plaintiff was employed by defendant, including job description, hours

worked and hourly rate, and identity of vessels plaintiff served on while in defendant’s employ.

4. Was plaintiff employed as a member of the crew of the Str. Lawsuit on the date of the accident.

5. Did plaintiff sign shipping articles for the voyages implicated in this suit; if yes;

a. State the dates and the location the shipping articles were signed;

b. State the time period the shipping articles encompassed;

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c. Did plaintiff work the entire period of the shipping articles, if no indicate the

date plaintiff ceased service under the articles;

d. Where are the shipping articles for the time period relevant located?

e. Will you produce said articles in accordance with a document request.

6. a. What is the amount of plaintiff’s earnings while employed aboard the vessel

for 12 months prior to the date of the accident, including but not limited to elements of base pay,

overtime, lodging, found, bonuses, contributions to benefit plans and any other compensation of

any other nature.

b. State the location and custodian of these earning records;

c. Did plaintiff receive any advances; if yes indicate amount and date of such

advance and how repayment will be made;

d. What is the daily rate of contribution on plaintiff’s behalf to the defendant or

applicable union pension or retirement plan, welfare plan, vacation plan or other plan that

constitutes a benefit to plaintiff?

7. Describe the job duties of plaintiff during the voyage at the time of plaintiff’s

accident.

8. Describe in detail the job duties plaintiff was engaged in at the time of his accident.

9. What was the itinerary of the Str. Lawsuit encompassing the voyage upon which

plaintiff was injured. Include the ports of call and any other locations where the vessel docked

until plaintiff left to seek medical attention for the accident that is the subject of this lawsuit.

10. Who was plaintiff’s supervisor at the time of his accident?

11. Who was the individual aboard the vessel that was responsible for the manning and

hourly requirements of plaintiff for the voyage upon which his accident occurred?

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12. Does the individual in response to interrogatory no. 11 have a supervisor or other

individual that must approve his decisions as to manning and hourly assignments? If yes,

identify such individual and his position with the defendant.

13. Do you have information about plaintiff’s accident? If yes, what was the date and

when was it first reported to defendant and by whom.

14. Was an accident report or any other report or documentation prepared for plaintiff’s

accident, which is the subject of this lawsuit.

15. Identify who else was or became aware that plaintiff had been injured in the

occurrence that is the subject of this lawsuit.

a. How did the individual(s) become aware of plaintiff’s injury.

16. What hours did plaintiff work for seven days before he was injured.

17. What were the weather conditions at the time of plaintiff’s accident?

18. To your knowledge or that of others in your employ, do you know what plaintiff was

doing at the time of the accident and what occurred? Provide details including but not limited to

the time of the accident, the location aboard the vessel where it occurred, and witnesses that may

have seen what happened.

19. Was plaintiff ordered to do any task at the time of the accident? If yes, detail who

directed plaintiff and what task was he to do.

20. Was lighting a factor in plaintiff’s accident. If so, provide details of the condition of

the lighting at the time of plaintiff’s accident.

21. Do you have information that plaintiff’s accident was caused by a defective

appliance or other broken device aboard the vessel? If yes, when did you receive notice of such

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defect and has it been rectified. If it has been rectified provide details of when and how it was

accomplished.

22. Is there any statute, regulation or rule enacted by a governmental authority that

applies to the circumstances surrounding plaintiff’s accident? If yes, describe what it is and

where it is cited.

23. Provide the crew list for those aboard the vessel at the time of the accident and for a

period of seven days prior. Provide the job position, home address and phone number for each

individual.

24. Have you taken statements, reports, recordings or any testimony whatsoever of any

individual pertaining to this accident. If yes:

a. Who took the testimony and what is the name, address and phone number of

the individual it was taken from;

b. When was such testimony taken and what form is it in;

c. Where is the location of the testimony?

25. Identify witnesses to the accident with their job position, home address and home

phone number.

26. Identify anyone else that may have relevant information about the accident or events

leading up to the accident and provide job position, home address and home phone number.

27. State the factual support for each affirmative defense set forth in the answer. State

what plaintiff did that constituted fault on his part and contributed to his injuries.

28. Did you receive any complaints related to any condition that may have contributed to

plaintiff’s accident? If yes, when, by whom and how were such complaints made.

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29. Do you conduct safety meetings? If yes, describe how often, where held, attended by

whom and the agenda and whether minutes or some written notes are taken of such meetings.

30. Do you conduct a yearly winter meeting for the officers that serve aboard your

vessels? If yes, describe where held, attended by whom, the agenda and whether minutes or

some written notes are taken of such meetings.

31. Are periodic inspections conducted of the vessel? If yes, describe in detail when,

who conducts such inspections and the results of such inspections for the last three years from

the date of filing of the lawsuit in this matter.

32. Are time records of employee time kept in more than one location? If yes, disclose

the locations of said records and the record custodian for each.

33. Was any medical assistance rendered to plaintiff? If yes, indicate who gave such

assistance and what the medical aid entailed.

34. Was any physical examination given to plaintiff at any time preceding or during his

employment with defendant? If so state:

a. Name and address of the physician who conducted the examination;

b. Is the physician employed by the defendant?

c. Was a written report of the examination and testing completed;

d. Indicate the identity of the individual who is in custody of such report and

testing.

35. Was plaintiff examined after the accident by a physician? If so, indicate the following:

a. Name address of facility or physician where plaintiff was examined

b. The date(s) upon which plaintiff was examined;

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c. Were medical reports or diagnostic testing results memorialized in some

writing;

d. If yes to subsection (c), indicate the record custodian and present location of

the records.

36. Did plaintiff have any preexisting medical conditions of which defendant was aware.

If yes, give the date you first became aware, the nature of such condition, when and where it

arose, and the name and address of physicians that treated such condition.

37. Has plaintiff had any previous injuries or accidents while in the employment of

defendant? If yes, provide the nature of such injury or accident, when and where it arose, and

the name and address of any physician that treated such injury.

38. Has defendant directed plaintiff to be seen by a physician at any time during his

employment. If yes, provide name, address of the physician and date plaintiff was seen.

39. Does defendant have any photographs or video of the particular site, object or scene

of the accident at issue in this lawsuit? If yes, provide the name, address of the individual having

custody and the dates taken.

40. Was any device, machine, equipment, appurtenance involved in this accident. If yes:

a. Where is the location of such device;

b. Has it been tested or studied for purposes of determining some issue in this

lawsuit;

c. Provide the name and address of the entity that did such testing;

d. Identify any documents related to the testing of the device at issue.

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41. Have you taken any photographs, videos or other surveillance of plaintiff. If yes,

what dates were such surveillance or other reproduction of plaintiff taken, the nature of the

content and the name and address of who took such photographs, videos or surveillance?

42. Have you consulted, retained or employed any individual or entity to act as an expert

witness with respect to any issues involved in this lawsuit. If yes:

a. Name, address and a curriculum vitae evidencing the expert’s educational

background, training, experience and qualifications;

b. Indicate the subject matter upon which the individual will testify at trial;

c. The substance of the facts and opinions that will be proffered;

d. The summary of the grounds for each opinion that will be proffered.

43. Identify all responsible individuals as set forth in 46 USCA §8104 employed by

defendant that had some connection to the manning and work hour schedules aboard the Str.

Lawsuit.

ILLUSTRATIVE REQUESTS FOR PRODUCTION OF DOCUMENTS

In order to obtain the documents needed to prosecute the action, narrow and specific

descriptions of documents are best. Overbroad requests will yield objections or counsel will not

reveal the correct documents.

1. All documents or other things referred to in the answers to interrogatories propounded

to defendant.

2. All personnel records of plaintiff including, but not limited to, dates of employment,

wage and benefit records, accident and illness reports, and medical reports.

3. All vessel logs, rough and smooth, including deck logs, engine room logs, and any

other logs maintained that refer to the accident plaintiff suffered on July 19, 2000.

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4. All shipping articles for the voyages indicated in plaintiff’s first set of interrogatories.

5. Marine Index Bureau or other documents evidencing previous claims or accidents

suffered by plaintiff during his employment as a seaman with any company whatsoever.

6. Documents evidencing previous injuries sustained by plaintiff while employed with

the defendant. Such documents are to include those compiled by defendant or any party acting

on its behalf in the settlement of claims.

7. All documents or other things that relate to all prior accidents suffered by plaintiff.

8. Any documents signed by plaintiff in defendant’s possession.

9. All statements taken of any party or witness pertaining to the issues in this lawsuit by

defendant or any party acting on its behalf.

10. Any release presented to or purported to be signed by plaintiff.

11. Any written reports or other thing produced by witnesses, experts or any party acting

on behalf of defendant concerning any issues in this lawsuit.

12. Photographs or video of any machinery, appurtenances, devices, docks, piers,

wharves, the scene of the accident, or any other thing pertaining to plaintiff’s accident.

13. Any blueprints, or diagrams of anything related to the vessel that is at issue in this

lawsuit.

14. Copies of any forms, reports or statements compiled for any governmental authority

related to plaintiff’s accident or the violation of the statutory work hour limits by plaintiff.

15. All periodic inspection reports by the Coast Guard or any other governmental

authority pertaining to the Str. Lawsuit for the last three years.

16. All documents related to any item of damage suffered by plaintiff in the accident that

is the subject of this lawsuit.

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17. Any written practices, regulations or customs in effect at the time of the accident that

related to the happening of any event leading to the accident.

18. All records by any physician or hospital or other medical personnel related to

plaintiff including previous injury, medical condition, and pre-employment or employment

physicals or of the injuries suffered by plaintiff in this lawsuit.

19. All financial records for payment of medical treatment for plaintiff related to the

injuries suffered in the accident that is the subject of this lawsuit.

20. Investigation or inspection reports of any device, equipment, appurtenance, or the

area of the accident made either one year prior to the accident or for one year after the accident.

21. Copies of all insurance policies that pertain to coverage of plaintiff’s accidental

injury at issue in this lawsuit.

22. Copies of injury reports for any accident suffered in the area where plaintiff was

injured or for seamen that suffered injury due to a violation of the statutory work hour limits for

a period of two years prior to July 19, 2000.

23. Crew lists including names, addresses, and home phone numbers for each

crewmember aboard the Str. Lawsuit at the time of plaintiff’s accident.

24. All safety meeting minutes for one year prior to plaintiff’s accident.

25. All winter meeting minutes for a two-year period prior to plaintiff’s accident.

26. Any documents evidencing the rate of pay, benefits and working conditions

surrounding plaintiff’s employment.

27. Any manuals or directives governing defendant’s compliance with {46 USCA

§8104} et seq.

28. Any policies covering disability benefits, wage or medical benefits for plaintiff.

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29. Any manual or directive provided to plaintiff by defendant for a period of two years

prior to his accident.

30. Any surveillance recording, photograph, or videotape of plaintiff in defendant’s

custody or taken by a party acting on its behalf.

31. All documents provided to and from any expert that defendant has retained or

employed for purposes of examining the issues of this lawsuit.

32. Copies of any employee benefits to which plaintiff is entitled by virtue of his

employment with defendant.

33. Copies of any manual, program or rule related to operation of the vessel and/or

pertaining to safety issues aboard the vessel.

LAW FIRM, PLL

MAPPING THE TRIAL

Prosecution of a seaman’s statutory work hour violation claim presents unique problems.

The primary problem is that of witness availability. The witnesses are highly transient and

counsel should take steps to memorialize their testimony in case they are

unavailable at the time trial due to illness, death, geographic location, or some other event that

places the witness beyond the jurisdiction of the court. In those instances where cross-

examination was completed by conducting a deposition for use at trial, counsel has the ability to

interpose the testimony in the most valuable position within its order of proof.

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If counsel has a particularly credible witness, videotaping the trial deposition is vital so

that the jury can see the witness’ demeanor and credibility. Viewing the witness during the

testimony is particularly important where liability is at issue.

As plaintiff, it is best to begin with the stronger witness. Generally, it will be plaintiff in

the event of an injury or wage loss claim. In the event of a wrongful death claim, calling the

widow or the survivor to the action last will have the most impact upon the jury. The rule of

recency will place the testimony of the person who has been devastated by the death on the

juror’s minds as the defense launches into its presentation of proof.

After plaintiff or a strong verifying witness opens, strategically it makes sense to call all

factual witnesses so that there is some order to the presentation to plaintiff’s case. After the fact

witnesses have testified, plaintiff can call either defendant or defendant’s representative to cross

examine in order to bolster his version of the facts. This tactic should only be done if plaintiff

has some definite testimony that will assist in proving up his case. This is not the time to go on a

fishing expedition with the witness.

After the factual witnesses have established liability, plaintiff should then call liability

experts. It is imperative for the marine liability expert to appear live at trial so that the jury may

view his demeanor, credibility, and experience. If the cost can be borne by the plaintiff, it is

useful to have the liability expert sit through the entire trial so that if unanticipated issues arise,

plaintiff has the liability expert available to call for rebuttal. It is very effective to have the

expert testify about the witnesses that he has seen testify and comment on issues that arose

during the defendant’s case that may not have been adequately addressed by plaintiff. It allows

the liability expert to act almost as an alternate juror for he is the only other person other than

counsel that has heard all testimony and the court’s rulings.

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Plaintiff should next call medical witnesses to testify about treatment, prognosis and

future medical treatment. A vocational rehabilitation expert should testify next and is useful if

plaintiff must retrain for a new occupation, or is unable to return to a work setting due to lack of

education, skills etc. Other damage experts may testify about the monetary damages plaintiff has

sustained or will in the future. A certified public account can be extremely useful in estimating

not only wage loss, but loss of retirement, pension, and other benefits as a result of the accident.

An accountant will be far more credible, than plaintiff’s counsel using a blackboard to make

calculations for the jury at closing argument.

Jumbled presentation of the order of proof can occur due to travel schedules and the

availability of witnesses. In claims where much of the evidence constitutes common knowledge

this is not a problem, but in a specialize proceeding such as a maritime personal injury case, the

order of proof is important so that the jury can learn about the terminology and be able to

construct a complete understanding of the witnesses, their factual testimony and the expert

analysis to establish liability and damages. It is important that the witnesses be placed into a

logical order for maximum jury understanding and appreciation.

Defendant can offer nasty surprises to snare the unwary plaintiff at trial. Defense

shipping companies have extensive databases that allow them to track previous injuries suffered

by a particular seaman no matter what shipping company he is employed by. They are

membership organizations and can be discoverable information. Plaintiff should seek disclosure

of these reports in discovery responses. A model interrogatory and production of document

request has been provided to get this information. Further, plaintiff should also do discovery as

to whether defendant has placed plaintiff under surveillance and has videotaped plaintiff after his

accident. If plaintiff has propounded a discovery request to get surveillance videotapes or

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photographs, and defendant does not give them to plaintiff prior to trial, plaintiff should be

successful in preventing the admission of the evidence to the jury.

If plaintiff has done complete discovery on his case, there should be no nasty surprises at

trial. If evidence is produced at trial that plaintiff is unaware of, counsel should consult the

interrogatories and requests for production of documents to see if the material was requested. If

it was requested but not disclosed plaintiff can make the argument that the jury should not see

such offending evidence because he was not afforded the advance opportunity of reviewing the

material. A timely objection and request for a side bar conference should minimize any adverse

effect of the offending evidence on the jury.

Plaintiff must carry the burden of proof to be successful. If there are major unanswered

questions by the jury, it will likely produce a devastating result to plaintiff. The jury entrusts

plaintiff to answer all of its questions to its satisfaction and present a case that will impose

liability and allow it to award damages to plaintiff.

WITNESS PREPARATION

The attorney should prepare the witness in advance before testimony is given either at a

deposition or live at trial. First and foremost the witness must know that telling the truth is

paramount. The attorney should determine whether the witness has ever had a deposition taken.

If the answer is no, the attorney should set the stage as to who will be present, what the court

reporter’s duties are including swearing the witness to recording the actual testimony. The order

of questioning by each party’s counsel needs to be explained to the witness. Finally, it is

important to let the witness know how objections to testimony will be handled as they arise.

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During the proceeding or deposition, let the witness know that if it is necessary, a break

may be taken. However, during a break in an actual trial it is improper for counsel to confer

with the witness.

The witness needs to know to wait until opposing counsel has asked the question entirely

so that the transcript will be clean and so there is no misunderstanding as to what the witness

response is to the question. The witness must listen to the exact question asked by counsel, and

know that it is not a sign of weakness to ask for clarification. Months later when one is

reviewing the transcript, it will look as if the witness understood the question. Inaccuracies in a

deposition transcript can make that witness’s testimony less useful during trial and pretrial

settlement discussions. Such inaccuracies will provide fertile ground for cross-examination at

trial when every adverse statement in a deposition is revisited in front of the jury to the witness’

detriment.

The witness must be vigilant and pay attention at all times during questioning so that

small twists to a question can be heard and properly responded to in the answer. The witness’

credibility will suffer if he feigns misunderstanding as to what was asked. At best it shows the

witness was not being attentive and at worst that the witness was being dishonest.

The witness must listen and then consider the question carefully before an answer is

given. The witness needs to know that if the true answer is an “I don’t recall”, the fact that the

witness may not recall can certainly be a more accurate answer than no which mean absolutely

not.

Instruct the witness that when opposing counsel is inquiring of the witness, and the

question can be answered by a yes or no the witness should do so. It is not the witness’

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responsibility to assist the opponent. Any explanations by the witness can be offered during

counsel’s direct examination of the witness.

Prepare the witness to not accept opposing counsel’s questions as facts, evidence or the

truth. Opposing counsel can frequently ask a misleading question by stating that the evidence

was already introduced in the case, although the witness may not be familiar with it.

As factual witnesses, seamen tend to be intimidated by the process of responding to those

individuals that have higher education and are in a profession quite different from their own.

Emphasis to your seaman witness that “I don’t know” is entirely acceptable answer if it is a

truthful response to the question posed.

Do not allow opposing counsel to unfairly characterize or summarize the witness’

previous answer in phrasing the next question. If the attorney attempts to rephrase the witness’

answer, object and request that the court reporter read back the previous answer so that the

witness is clear as to the testimony. Caution your fact witnesses that if opposing counsel asks

them to agree with a statement to listen extra carefully. If there is anything that is incorrect say

so, the witness is under no obligation to agree with the attorney’s formulation.

Often witnesses will be asked whether a particular employee was a good or reliable

worker. Be careful when phrasing the answer because simple agreement makes it appear that the

person was one of the best employees in the company. If the employee is an average worker, say

so.

For preparation of the plaintiff in particular, he must review all statements and

communications that he has made about the accident or any matters pertaining to his lawsuit.

The plaintiff must familiarize himself with all allegations made in the complaint and all

responses to requests for admission, interrogatories, and production of documents requests. The

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worst thing that can happen at a trial is for the plaintiff is to state that he has never seen a

particular answer when a signed verification exists. However, it is not necessary to bring these

documents to any deposition or trial. Unless required by a subpoena duces tecum to produce the

documents, it is up to your opposition to have such documents available for the inquiry.

Counsel should caution the witness that opposing counsel might attempt to seek the same

information through different questioning techniques. Some attorneys return over and over to

the same points in order to try to obtain the answer they want or inconsistent answers. Also

caution your witness that he should be aware of any questions where opposing counsel has asked

if something is possible or probable, this invites speculation and counsel should object and

the witness should be wary.

Instruct your witness that any documents opposing counsel presents for examination

should be give careful scrutiny. The witness should not assume that he knows the document; it

may look similar to any number of documents. The witness needs to look at all head notes, dates,

individuals mentioned, and the destination of copies of the particular document. If the document

is lengthy, the witness should ask for adequate time to sit down and be able to read and digest it.

Do not allow opposing counsel to rush your witness so as to not allow adequate time review of

its contents.

The witness needs to remember that any testimony given is strictly based on personal

knowledge. Unless specifically asked the witness should never refer to what others may have

told him. The witness needs to beware of any questioning that attempts to elicit the

exact words used in a conversation. If that witness has any doubt about exactly what was said,

he should voice those reservations and provide the substance of the conversation as remembered.

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The seaman witness must not engage in arguing with opposing counsel. The witness’

duty is to give testimony and thus, should not argue about phraseology of questions. The

attorney may be attempting to upset or confuse the witness. A cautionary warning to the witness

that some attorneys are harassing in nature may prevent the foregoing problem. After asking a

question of the witness some attorneys sit silently and say nothing after the witness has finished

an answer. In such situations, a witness’ natural inclination is to keep talking and perhaps offer a

further explanation. Counsel needs to instruct the witness to not say anything and await the next

question.

If the opposing attorney is harassing or argumentative in nature, defending counsel

should object. However, the witness needs to be cautioned to not allow such harassment to

disarm him. It usually means that the witness is effective and opposing counsel is frustrated at

not obtaining the desired testimony. The attorney’s attitude or demeanor is irrelevant to the

substance of the inquiry. The witness needs to disregard the attempts of opposing counsel to

somehow influence the witness’ answer. In cases where the deposition will be used at trial in

lieu of the witness’ live testimony; reading back testimony in open court completely loses the

inflexion of the deponent’s voice or demeanor. The testimony is much more sterile in nature

since the emotion of the questioner and witness is absent.

In open court the witness must be prepared to be cooperative. The role of the witness is

to assist the fact finder in deciding the facts and therefore a helpful attitude in answering the

questions should be displayed.

Conversely the witness should be prepared to not allow opposing counsel to cutoff any

unfinished answer. The witness needs to state that he was not finished answering the question at

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issue. By allowing an attorney to cut the witness off, the testimony is fragmented and the jury

may not get an accurate depiction of the facts.

The attorney should bolster the seaman witness’ confidence by reminding the witness that

he knows the sailing and its rigors far better than opposing counsel and that he knows what

occurred.

Prepare the witness to listen to your objections. Often useful information can be telecast

through counsel’s objection. In instances where opposing counsel has mischaracterized the

evidence, counsel through its objection can alert the witness to the incorrect testimony. The

witness needs to be made aware that he may make certain assumptions and estimates, but only as

to items capable of such estimates, and above all the witness should not speculate.

Counsel should prepare the witness that the judge and jury may ask questions during the

witness’ testimony. All the foregoing guidelines apply to questions asked in this manner, but the

witness must assist the fact finder and judge to answer inquiries. They will be more willing to

side with plaintiff if their questions are answered.

Special rules apply to videotape depositions for use at trial. The seaman witness should

be prepared in the following manner: First, they should dress professionally, a suit and tie or a

dress. If the seaman witness does not own one, a clean shirt with a tie or for a woman, a dark

pantsuit would do. The camera tapes from the waist up, so a professional look to the waist will

do. The witness must sit up straight and keep one’s hands on the table or in one’s lap. The

witness must remember to sit still because the squirming or shifting can give the appearance of

avoiding a question, which will appear dishonest. The witness should speak in a normal tone so

the microphone attached to the lapel will amplify the volume. The witness’ tone should not vary

from the other participants or it will be noticeably loud or soft on the video replay. Finally, the

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witness must look directly at the camera as if it is the jury or the questioning attorney to replicate

how the witness would respond in a courtroom setting.

The witness should be prepared that documents may be handed over for review. As with

any other deposition, it is imperative for the witness to thoroughly review the document. After

the review has been completed the witness should look up to queue the inquiry. The witness

should avoid looking down at the document while testifying because the volume may become

muffled and the witness will not be maintaining eye contact with the camera. If an extended

time of review is needed, the camera should recess to prevent dead airtime.

The seaman factual witness may need to review any safety manuals and general

vessel safety rules applicable to the accident. If the witness either gave a statement or was

involved in preparation of an accident report, such material must be reviewed as well. The

careful preparation of factual witnesses should yield favorable results for well-prepared counsel.

EXPERT WITNESS PREPARATION

The expert witness will likely have testified in various cases before, but in general will

follow the rules set forth above. However, an expert witness must understand ethical principles

that can be enforced by courts. The possession of confidential information by the expert can

result in disqualification from acting in the current matter or civil liability. The attorney must

examine the prior retention, identifying both the retaining party and that person’s counsel. The

expert and the attorney need to determine whether previously received information that was

provided in confidence may affect the outcome of the present litigation. If there is some

information that has been provided in confidence, courts have the power to disqualify the expert

witness if they feel there is risk of conflict of interest. Although there is no prohibition for

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working for the other side on previous occasions, the expert has a duty to preserve confidential

information told to them by the opposition.

If a conflict of interest arises the court will examine whether the previous client

reasonably believed that some of the information told to the expert would be kept confidential

after the case ended and whether there is any danger of disclosure of the confidential information

in the present matter. Counsel should specifically identify confidential material when it is given

to any expert witness so that counsel is protected if such a conflict arises. The unauthorized

disclosure of confidential information can give rise to liability. Therefore, in preparation of the

expert witness confidential concerns should be addressed.

Since the expert witness has likely testified in previous matters, caution the expert not to

try to figure out why opposing counsel is asking him a particular question or inquiry. Such

dissection can distract the witness from listening to the question. Indeed the lawyer may simply

be confused. Again, it is not the duty of the witness to straighten out any misconceptions or

mistakes that the opposing counsel has made.

If the expert is asked for an opinion by opposing counsel, give it. As an expert, the

summary and substance of the facts leading to the opinion are all discoverable information by the

opponent. The expert should be prepared to have all opinions dissected minutely by opposing

counsel to uncover some inconsistency or something which may be supportive of the

opposition’s case. Above all, the expert witness should remember not to stray from that which

can be supported by the evidence and experience in a particular case, the unbelievable or

untenable position will cost the expert credibility in the fact finders assessment.

TRIAL BRIEF

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The trial brief assists in defining the outstanding issues in the case and focus the

introduction of the evidence in the claim. The well-drafted trial brief can be useful at settlement

discussions with the judge because it provides an outline of the alleged facts in the case and the

corresponding case law. The trial brief also will point out the shortcomings in the opposition’s

case so that the parties can focus on such problems when trying to arrive at a settlement on the

claim. An illustrative trial brief based upon a seaman that was injured while docking the vessel

due to overwork in violation of the statutory work hour limits set forth in {46USCA §8104}

follows:

I. PRELIMINARY STATEMENT

This is a suit brought by a seaman employed as a watchman/deckhand against the

manager and owner of the Str. Lawsuit, for injuries allegedly sustained on July 19, 2000. Mr.

Seaman makes claim for his injuries under the Jones Act, {46 U.S.C.A. §688}, and for violation

of {46USCA §8104}.

II. CLAIMS OF THE PARTIES

Plaintiff alleges that defendant was negligent due to the fact that an act or omission by

defendant constituted a breach of duty and legally caused plaintiff's injuries. Defendant denies

that it was negligent or that a violation of the work hour statute occurred. If plaintiff was injured

due to a slip and fall aboard the Str. Lawsuit on July 19, 2000, it occurred because he was unable

to lookout for his safety and was placed in peril because he had worked more than 12 in the

previous 24 hours.

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III. STATEMENT OF FACTS

A. BACKGROUND

The Str. Lawsuit is a Great Lakes self-unloader which is approximately 970 feet in length

overall. Plaintiff, Mr. Seaman, is currently 58 years of age and resides with his wife in New Port

Richey, Florida. Plaintiff has worked for defendant since 1979, but was previously employed by

another Great Lakes shipping company earlier that year, and did other work during the off season

when the vessels do not operate due to the weather. Plaintiff was employed as a deckhand

aboard the Str. Lawsuit at the time of his alleged accident.

B. THE ALLEGED ACCIDENT

Plaintiff testified on deposition that he was injured at approximately 9:05 A.M.while

employed as a deckhand aboard the Str. Lawsuit on July 19, 2000. At that time the vessel was

bound for St. Joseph, Michigan. Weather does not appear to be a factor in plaintiff's accident.

(cite to relevant portions of witness and Plaintiff testimony in the depositions). As a deckhand,

plaintiff's duties included docking the vessel. Plaintiff had walked the forward line to throw it to

a deckhand positioned on the dock. Plaintiff was approximately amidships when he noticed a

weather cover on one of the hydraulic hatch cranes was not secured. As plaintiff was on the

starboard side of the vessel and looking at the weather cover, he slipped on grease that was on

the deck as he was walking forward.

Plaintiff testified that at the spot he fell there was grease present. Plaintiff could not

definitively state what any other substances other than grease may have been in that area. He

testified: "There was the mud and grease from the loading. Plaintiff further described what the

mud was comprised of: "Iron ore dust is what I am referring to and that's -- all we haul is iron

ore pellets, and of course you have the dust." Plaintiff admitted that he and the deckhands had

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worked 19 hours of the foregoing 24 hours because the main deck was being painted and they

were needed to assist the painters.

Plaintiff is not really sure whether he was bent at the waist or standing upright, but he

recalls his feet went out from under him and he fell to the deck he rolled over and tried but could

not right himself. Plaintiff yelled to witness one who saw him fall and got the mate to come to

his assistance. Plaintiff was ultimately taken on a backboard to his quarters. He disembarked the

vessel at St. Joe’s at 4:00 A.M. the next morning and was subsequently admitted to Memorial

Hospital).

At the hospital a patellectomy of plaintiff's right knee was done. Patient was discharged

from the hospital and followed up with Dr. Orthopedic in Michigan. He healed satisfactorily but

was noted to have an abnormal gait of the right lower extremity. He continued from the end of

August 2000, through November of that same year on an exercise program combined with a

knee-strengthening course. Dr. Orthopedic cited that plaintiff had a short leg on the right side

and walked with a detectable short leg gait.

Plaintiff has never returned to work.

Plaintiff argued negligence based upon the fact that there was grease on the deck, which

caused him to slip and fall. Plaintiff expects the testimony to show that defendant’s negligence

proximately caused any injuries he may have sustained due to its failure to abide by the work

hour limitations dictated by federal statute and for allowing grease to accumulate on the deck.

Plaintiff was fatigued from the overwork was unable to avoid such an accident

IV. APPLICABLE LAW

A. NEGLIGENCE

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In order to maintain his action for negligence under the Jones Act, 46 U.S.C.A. §688,

plaintiff must establish by a preponderance of the credible evidence; (a) a negligent act on the

part of his employer, and (b) that the negligent act was a proximate cause of plaintiff's injuries.

Norris, The Law of Seamen, §30:34, p. 458 (4 ed., 1985); <Oliveras v U.S. Lines 318 F 2d 890>;

<Forestel v. U.S. 261 F Supp 269>.

All seamen traverse the decks of their ships many times daily. It is imperative that the

deck crew is vigilant in cleaning grease, oil, or other substances from the deck. Plaintiff was

fatigued from overwork and did not see the grease on the deck. It was defendant’s negligence

that caused the accident

The second nexus of the two-part test as enunciated under the Jones Act has been

satisfied. The negligent act of overworking plaintiff combined with allowing grease to

accumulate on the deck constitutes a proximate cause of plaintiff's injuries. In <Ceja v. Mike

Hooks 690 F 2d 1191>, the court stated that a seaman is not contributorily negligent merely

because he uses an unsafe tool or proceeds in an unsafe area of the ship

CONTRIBUTORY NEGLIGENCE

The doctrine of contributory negligence is not applicable to bar recovery of a seaman in a

personal injury action. Instead, comparative negligence is the appropriate doctrine to apply.

<Socony v Smith 305 US 424>. In essence, the doctrine of comparative negligence will assess

the contributory negligence of the plaintiff and appropriately mitigate the amount of damages

recoverable. If there is negligence on the part of the plaintiff, which contributes to causing an

accident, the proportion of his fault is applied and a deduction is made from the total damages so

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that any award will represent a net recovery. The comparative negligence rule is applicable in

actions based upon alleged negligence, which was previously discussed under the Jones Act

section of this brief, and seeks to appropriately diminish the amount of the plaintiff's seaman's

recovery.

The burden of proof regarding plaintiff's contributory negligence is on the defendant.

<Palmero v Luckenbach 355 US 20>.

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The assumption of the risk doctrine is not applicable in a seaman's action for

personal injuries so any argument advanced by defendant on this basis is to be

disregarded.

DAMAGES

Damages in a seaman's action under the Jones Act are to be compensatory, and

may include amounts intended as compensation for pain and suffering, unreimbursed

medical expenses and care, wages lost and impairment of future earning capacity.

<Chesapeake v Kelly 241 US 485>. Any award for future earnings is to be reduced to

present value. <J&L Steel v. Pfeifer 462 US 523>. Plaintiff has carried his burden of

proof that he has suffered damage and has proven each element thereof with reasonable

certainty.

Damages for impairment of earning capacity and probable loss of future earnings

are measured on the basis of life expectancy and work life expectancy at the time of the

alleged injury. Economic studies done demonstrate that the average American seaman

will work at least to age 62. Plaintiff was otherwise in good health and had planned to

work to a retirement age of 65.

Any award of damages for loss of future earnings is to be based upon the

probably pecuniary loss reduced to its present net worth. <Downie v. U.S. Line 359 F2d

344>; <St. Louis v Dickerson 470 US 409>. When calculating loss of future earnings, it

is appropriate to show the amount of income taxes and the corresponding net amount of

earnings, since it is the after tax or net income amount that is relevant in measuring

plaintiff's ability to support himself. Lump-sum awards are not subject to income tax and

as such a jury must be apprised of this fact in order to calculate the correct amount based

upon net income. <Norfolk v Western Railroad 444 US 490>. In determining the loss

of a seaman's earning capacity a case from the Sixth Circuit, <Petition U.S. Steel 436 F2d

1256> states:

"The formula for determining the amount of an award for loss of earning capacity in this circuit was enunciated in <Imperial Oil v Drlik 234 F 2d 4>

"'One who is injured in his person by the wrongful act of another may recover loss of time resulting there from and consequent loss of earnings, including future earnings, provided they are shown with reasonable certainty and are not merely speculative in character. The measure of damages in this field is fairly definite, and the amount awarded is controlled by what the evidence shows concern ing the earning capacity of the injured person before and after the accident.'

Therefore, evidence regarding plaintiff's loss of earning capacity and impairment

show that he would have worked until age 65 and he is impaired by continuing pain in his

right knee which disables him from employment. He is restricted in the work he can do

by his physician and has suffered a substantial loss of earning capacity.

V. CONCLUSION

Plaintiff suffered a serious injury due to defendant’s negligence by overworking

him and allowing grease to accumulate on the deck and is entitled to a substantial

compensatory award from defendant.

Respectfully submitted,

Law Firm, PLL

By_______________________________

PRETRIAL MOTIONS

It is very difficult to obtain a summary judgment in a seaman’s claim where an

injury or death claim is at issue. There are almost always disputed material facts that will

allow one of the parties to present the case to the fact finder. If the claim is limited to

wages only, it will be necessary to show the violation of the statute and that there was no

extenuating circumstances that would excuse the violation. If the plaintiff volunteered to

do the overtime, or the vessel was in exigent circumstances a summary judgment motion

will not be successful.

Motions in limine can have a devastating impact when used properly. The motion

can prevent the opposition from using or mentioning evidence in the jury’s presence; it

can require the opposition to proffer evidence outside of the jury’s presence; and obtain

an advance ruling from the court on the admissibility of evidence. Evidence that may be

inflammatory or prejudicial in nature and for which one party does not want the jury to

hear about can be limited through the successful motion in limine.

The motion in limine can limit the expert in what is testified to and to limit that

evidence that may not be relevant. Advance rulings through use of this device saves

counsel from making objections in front of the jury, particularly unsuccessful ones.

The successful motion in limine is limited to the presentation of one issue and

should be short and to the point. A ruling on a motion in limine is interlocutory. Since it

is not appealable, the unsuccessful party may throughout the course of the trial seek

reconsideration or modification. A motion in limine to exclude an expert witness

follows:

MOTION IN LIMINE

Plaintiff moves this court for an order excluding the testimony of Dr. Figures for

the reasons set forth in the attached supporting memorandum to be incorporated herein.

Respectfully submitted,

LAW FIRM, PLL

By___________________________

SUPPORTING MEMORANDUM

During the course of trial preparation in this matter, plaintiff received a report for

the Estimate of Lost Earning Capacity of Mr. Seaman, authored by Dr. Figures &

Associates, a financial consulting and economic analysis company.

Dr. Figure’s report and proposed testimony does not constitute expert opinion

testimony properly admissible under Federal Rule of Evidence 702. Dr. Figure’s report

contains nothing more than arithmetic. In fact, a proposed jury instruction submitted by

plaintiff will instruct the jury, based upon the testimony on plaintiff's lost earnings to

calculate future wage loss. Dr. Figure’s report, fails to meet the standards for

admissibility of expert testimony. In <Daubert v Merrill Dow 113 SCt 2786>, these

standards are set forth in Federal Rule of Evidence 702, which provides:

"If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."

The trial judge first makes a preliminary finding under Federal Rule of Evidence

104(a), that the scientific or technical theory which is the basis of the expert's opinion is

indeed "scientific, technical, or . . . specialized knowledge." The trial judge must also

determine whether the expert's opinion "will assist the trier of fact to understand the

evidence or determine a fact in issue." Federal Rule of Evidence 702. Here, the

proposed evidence lacks both, it is neither specialized knowledge nor will it assist the

trier of fact.

The Court in Daubert explained that part of the trial court's "gate keeping"

function under rule 702, is to make a determination when scientific opinion testimony is

offered as to whether "the reasoning or methodology underlying the testimony is

scientifically valid." <113 SCt 2796>. A comparable duty is imposed upon the trial

court when the subject of the proposed opinion testimony is not "scientific" knowledge,

but "technical, or other specialized knowledge."

In this case, Dr. Figure’s opinion is nothing more than the window dressing of

mathematical calculations that a jury can do. A jury instruction offered by plaintiff will

assist the jury in this calculation if they reach the issue of future lost earnings. Further,

Dr. Figure has no specific training or expertise, which would elevate his testimony to that

of a scientific or specialized nature that would have provided him the basis with which to

form his opinions.

WHEREFORE, plaintiff submits that based upon the foregoing reasons, Dr.

Figure’s report and proposed testimony be excluded.

Respectfully submitted,

LAW FIRM, PLL

By_____________________________

PRETRIAL CONFERENCE

Counsel in a seaman’ statutory work hour violation case should utilize the

settlement brief and/or trial brief in the pretrial or settlement conferences. It is imperative

to map the damages and how each element will be proven in order to gain maximum

settlement value for the claim. At most conferences the client must be present and

counsel needs to obtain settlement authority from the client prior to the conference. It is

not unusual for state and federal court judges to ask to see the client privately in their

chambers. There is not much that counsel can do about such a move other than to warn

your client before the conference. The seaman client must be advised to not vacillate

from a position that has been formulated no matter how much influence the judge seeks

to exercise.

Trial counsel must attend the pretrial conferences since motions in limine and

other evidentiary issues that may arise at trial are frequently discussed. Although

settlement may be explored, the pretrial is typically used to narrow the issues for trial and

obtain rulings on motions in limine. Settlement conferences on the other hand offer the

opportunity for counsel and the client to have the judge that will be conducting the trial to

focus on the case. This input from the judge is particularly useful to gauge what advance

rulings may be made and possibly what the judge may think about the case on a number

of issues.

Counsel needs to inquire about how the judge will conduct the proceedings. What

time will the trial start and what is the schedule each day. Does the judge cut off at a

strict time, or is counsel permitted to conclude it’s questioning before the days recess is

taken. Such information is important so counsel can schedule the evidence with the most

impact to be heard without long interruptions or delays. Does the judge conduct side bar

conferences or are such lengthy exchanges to be completed at times that the jury is

recessed. Are speaking objections appropriate or does the judge merely wish to hear an

objection and will ask for grounds on an as needed basis. Counsel should inquire about

any electronic devices in the courtroom and how the presentation of evidence that

requires such devices should be implemented.

The focus for counsel of the plaintiff seaman to maintain is that the settlement or

pretrial conference is a mechanism to use to try and settle the case prior to trial. If

settlement is possible but the parties are at an impasse, counsel should request a neutral

third party to mediate and attempt to devise a settlement between the parties. This can be

accomplished through the court’s alternate dispute resolution arm or by seeking

assistance from the trial judge. An important point to remember is that settlement

discussions work in tandem with the trial of a successful case and meticulous preparation

for each is essential.

VOIR DIRE OF THE JURY

The key to successful jury selection is to obtain targeted information from

prospective jurors that are supportive of the case or client. Well drafted questions

directed to potential jurors can not only telegraph the substance of what happened to the

client, but can yield some advance signs of the receptiveness of the potential jurors. The

questions should be designed never to embarrass or seek harassing information from the

jurors. If a sensitive area of questioning needs pursuit it should be done with the judge

and opposing counsel at a side bar so that it does not occur in open court. Acting

insensitive to a juror’s feelings is the surest way to defeat.

The trial court’s failure to allow questions to be asked by counsel that could

reveal bias on the part of a juror which could lead to challenges for cause constitutes

reversible error.<Ham v. South Carolina 409 US 524>. Depending upon which court the

case is filed in the voir dire may be conducted exclusively by the judge, the attorneys, or

a combination of both. Some judges conduct the questioning individually or in a group.

Questions designed to detect bias seek the feelings of the juror about the legal

system in general or filing lawsuits specifically. Once the feelings are ferreted out ask

how it might influence the juror in deciding the case. It is important to allow the jurors to

talk, eliciting yes or no answers will discover minimal information to the detriment of the

questioning attorney.

The illustrative voir dire questions are specific to an injured seaman’s claim with a

violation of work hour limits.

PROPOSED QUESTIONS FOR VOIR DIRE

1. Please describe your job in detail. What do you like about it? What do you

dislike about it? What kind of decisions do you have to make in your job?

2. What are your hobbies? Do you own a boat of any kind? Do you sail or crew

on another’s boat?

3. In any of your jobs have you been called upon to work a lot of overtime? If

yes, please give details.

4. Have you or a close friend or relative ever experienced physical problems as a

result of a work related injury? If so, please describe.

5. Have you or a close friend or relative ever worked on a commercial ship or on

a ship in the military service? If so, please give details.

6. Have you ever been on a commercial or military ship as a visitor? Please

describe.

7. Have you or a close friend or relative ever worked as a seaman? Did your

friend or relative describe such work? How?

8. Did that person describe what doing that kind of work involves?

9. Are you a member of a union? If so, which one? Have you ever held office in

a union? If so, please give details.

10. Have you or a close friend or relative ever been hurt on the job seriously

enough to need treatment by a doctor or at a hospital?

11. Have you ever made a claim for workers’ compensation or Social Security

disability benefits? If so, please give details.

12. Have you or anyone in your close family ever made a claim for personal

injuries because of an accident or because you got sick on the job? If so, what was the

nature of the injury? Did a lawyer represent you? Did you settle before a suit or did you

go to trial? What was the result? Did you feel the result was fair?

13. Have you or a close friend or relative ever had an injury severe enough to

require medical treatment or to be absent from work? If so, please give details.

14. Have you or a close friend or relative ever had a knee injury? Please

describe.

15. Could the fact that you might feel sympathetic to one side or the other

influence your decision in this case?

LAW FIRM, PLL

OPENING STATEMENT

An effective opening statement clues the jury for evidence to support the theories

of liability introduced during the opening statement. The following outline of an opening

statement in a seaman’s claim is related to an injury as a result of overwork. The

overwork was due to a violation of the work hour limits.

1. Describe the vessel and show a picture of it to jury. Include its vital statistics

and what industry it is devoted to. Describe the departments aboard the vessel and

plaintiff’s position aboard the vessel and his role in assisting the defendant conduct its

business.

2. Describe the plaintiff including his work aboard the vessel in general, his

family life and how his chosen career is important to him and his life.

3. Set the scene of the accident. Pictures of any equipment or the magnitude of

the deck or area involved is useful to orient the jury.

4. Describe the days leading to the accident and carefully detail the hours

plaintiff worked prior to the accident and what his job duties entailed. If he is a watch

stander detail the different watches and how it requires that plaintiff get up in the middle

of the night to work.

5. Set the scene by identification of coworkers or eyewitnesses to the accident

and what they were doing at the time.

6. Detail the accident including the physical demands made upon plaintiff, his

psyche at the time of the accident and what events occurred that led to the injury.

7. Describe the interaction that plaintiff had with coworkers at the time of the

accident. Was anyone assisting him in the performance of his job duties? Should

someone have assisted plaintiff in the completion of his duties.

8. Describe the aftermath of the accident. Was medical treatment rendered

immediately? Was there an interruption of work? Was the accident reported to

plaintiff’s supervisor?

9. Describe the medical treatment and outcome or prognosis.

10. Describe the incidents of negligence, unseaworthiness or other acts that

would impose liability upon defendant. Describe the lack of negligence by plaintiff. Are

there any burden of proof issues (i.e. Pennsylvania Rule) that should be described?

11. Describe the jury’s duty to listen to the evidence and judge credibility. Let

them know the order of the proofs and any other factors that relate to their assessment as

the fact finders.

THE PLAINTIFF’S CASE

General points to remember in conducting an examination is that absolutely every

element of proof must be covered or the attorney may be subject to a directed verdict

motion at the end of plaintiff’s case in chief. The attorney must research all points

pertinent to proving a violation of a statutory work hour limit. Make a checklist to ensure

that supporting evidence covers every element of proof. The checklist will serve as the

outline to defeat a directed motion verdict put forth by the defendant. If there are

elements that do not have sufficient witness support, it will be necessary to prove up such

elements with documents or other evidence. Never allow an element in the proof of the

case to escape notice, for the other side will seize upon it on a directed verdict.

When evaluating the strength of a particular witness, if more than one witness will

testify about the facts, study the impact of each individual witness’s version and how it

will appeal to the jury. The strongest witness should be the one to offer that element of

proof as the focus. Too many witnesses testifying about the same facts will likely draw a

successful objection from opposing counsel on the basis of cumulative evidence.

The most important way to bolster evidence is through the use of exhibits or

documents. Counsel must match those exhibits to the element of proof it supports. It is

important to preplan how the witness will testify about the exhibit. Advance preparation

to detour admissibility problems and questionable testimony will award the issue

conscious attorney. In order to prevail on objections, counsel should know in advance

what likely objections would arise and find support for a particular position to defeat

defendant’s grounds. If the planning is done in advance it is much more effective than

attempting to respond on the spot to a particular objection.

Start your direct examination by eliciting the witness’ background so the jury will

humanize the witness. Jurors will be their most attentive when first introduced to a

witness. By allowing the witness to testify about something familiar, it eases tension and

allows the witness to establish a comfort level that will be in place when detailed or

controversial testimony is elicited.

To plan an effective direct examination of plaintiff’s witnesses, one should refer

to the initial outline on the elements of proof and decide whether to attack the elements

chronologically or based upon the subject matter of the element. Remember, it is easiest

for jurors to digest testimony that tells a story and is coherent. Direct examination is not

as successful when a gunshot approach is used. If the events are presented

chronologically, and the witness has not volunteered in the answer the necessary element

of proof, then the questioner needs to queue the appropriate response. “Mr. Witness, I

would like you to describe what your work hours were for the two days prior to this

accident”. The question verbally queues the witness to examination on the excessive

hours worked in violation of the work hour limit statute and provides the foundation for

the forthcoming related questions.

As you are moving from one chronological event or subject to the next, you may

use a sentence, which queues the witness, judge and jury into what will be presented.

Think of it as the topic sentence to the next paragraph. The problem with attorney

questions is that jurors have no idea why the testimony is being elicited. Studies show

that a framework provided to the jury assists them in retaining the testimony of the

witness.

Keep the direct examination short and attempt to conclude with the witness

testifying upon a particularly strong point that will be difficult for opposing counsel to

attack on cross-examination.

Question: “Mr. Witness did you ever discuss the fact that you worked 18 hours a

day before the accident and 19 hours the day of the accident with defendant’s personnel

manager Mr. X

Answer: Yes I did.

Question: What were you told?

Answer: That he was unable to find somebody to work aboard the vessel

and that we would just have to pickup the slack.”

Advance planning of potential redirect examination should be done far in advance

of the witness taking the stand. The focus of redirect is to reestablish points made on

direct that were attacked during cross-examination. If a particular subject did not arise

during cross examination, trying to inquire about it in redirect will likely draw an

objection from the opposition and depending upon the judge, it may not come in since it

is beyond the scope of cross-examination. Redirect examination requires pondering how

the opposition will cross-examine your witness. Although it can provide spectacular

testimony, there is a danger in saving a crucial element of proof to be brought out during

redirect examination. Counsel may not examine at all, or the subject may not come up in

cross-examination, which would limit its use in redirect.

If a witness made an error during cross-examination, counsel should rehabilitate

the witness by asking: “In response to defense counsel you stated that plaintiff was

walking up the port side of the vessel. Is that correct or was it the starboard side.” This

will prompt the witness that he made some error.

Direct examination questions should be open ended. It makes it even more

critical to thoroughly prepare the witness so all necessary elements of proof are covered

and the witness becomes familiar with the expected testimony.

The worst thing a lawyer can do during direct examination is to merely lead the

witness and feed testimony by eliciting a yes or no response. This approach damages the

witness’ testimony, because it appears that the lawyer is testifying and will decrease the

witness’ effectiveness to the jury.

Once the lawyer has planned the elements of proof that are necessary to impose

liability and address damages, counsel needs to become so familiar with the direct

examination that only brief notes will be needed at trial. To read from a legal pad is to

conduct a stilted and over rehearsed play. Furthermore, counsel needs to listen to the

answer provided and react with a follow up question that may not necessarily appear in

the script. The testimony will flow better and tell a story to the jury.

Prior to the witness appearance at trial, prepare them in a formal courtroom

setting so that the feel and the acoustics become familiar to the witness. The seaman

witness will likely have never been in a courtroom before and such advance preparation

will relax the witness.

It is important that the witness dress appropriately for court. An underdressed

witness is oftentimes unacceptable to the judge. It is wise to inquire in advance whether

the witness must wear a suit, or if a shirt and tie is sufficient for a male and whether a

dress is required for a female.

If the witness wears a uniform to work, and if the judge approves in advance, it

may lend credibility to the witness to testify in a freshly laundered uniform.

Prepare the witness to speak loudly and clearly for the jury. Emphasize the need

for the juror to look at the jury occasionally so that they can make eye contact. An

advance meeting at the courthouse, so that the witness knows exactly where to go and

what will be entailed will help to alleviate nervousness. Remember the more the witness

perceives as being under his control, the more confident the witness will be on the stand,

which should bolster his credibility with the jury.

USE OF EXHIBITS

As counsel is planning the presentation of the case to the jury, documents and

other items that will be marked as exhibits must be subjected to advance planning. Each

document that is to be admitted as evidence must prove an element of the case.

Otherwise it is simply verbiage and should not be used. Since admitted documents will

go into the jury room for deliberations, it is important for counsel to highlight those

documents supportive of his position, but not submit a morass of paper that the jury will

ignore.

The presentation of exhibits has become ever increasingly sophisticated through

the use of computer-aided technology. Juries trust computers and a computer-aided

scenario can be extremely useful in proving up the necessary elements of the claim.

However, the cost for such computer-aided technology is high. There are marine experts

that utilize programs to recreate accident scenes and to demonstrate all aspects of

shipping.

Often it is the simple impact of an enlarged document that the entire jury may

easily view that can make the most impact. It is most effective to introduce the

demonstrative exhibits early so they remain on display. Repetitive viewing by the jury

will enforce the information within the exhibit. Probably the most useful exhibit is the

ship model. Model builders can recreate the vessel to the most minute detail. Often

times the good model will be used by both parties to prosecute the case, and the cost

should be shared by all who will use the model.

When the opposition places large demonstrative exhibits on an easel in front the

jury, counsel should cover it during the presentation of the case in chief with an equally

large exhibit. The jury should not continue to view the opposition’s exhibit beyond the

period for which it is needed.

Any evidence that will be used for the purposes of demonstration and may not be

admitted as evidence in the case needs advance clearance with the judge and opposing

counsel. It is disastrous to wait until the introduction of the demonstrative evidence. If

the opposition objects and it is sustained, the results are at the least embarrassing to the

unsuccessful lawyer. In a work hour limit case, a timeline of the hours worked for the

days leading up to the accident interposed with plaintiff’s testimony about the amount of

rest or sleep, can be very effective in proving the fatigue factor. It is critical to plan in

advance and not overdo the introduction of exhibits, so that the jury can focus on the

most crucial.

Illustrative examples of witness questions and exhibit introduction follow for use

by the plaintiff in building its case in chief. Basic background questions have been

omitted for conciseness.

PLAINTIFF’S DIRECT EXAMINATION

Are you married?

Does your wife work outside the home?

Why not?

Do you have children or others that rely upon you for support?

Were you in the military-branch, honorable discharge?

What level of education do you have?

When did you obtain your seaman’s card?

When did you start sailing?

With what company?

Did you work for more than one?

Did you keep a record of your discharges from those vessels?

Do you remember providing the sailing discharge slips to me—mark and identify

as exhibit

How many vessels do they refer to?

How many years have you been sailing?

Did you ever work at any other occupation?

Why not?

Did you complete an application for your seaman’s card in 1987?

Did you have foreign sea service as well? Tell the jury about it

Did you do any other work during your off season from sailing?

What and how much did you earn per year doing that work?

Were those wages that would appear on your yearly tax returns?

When did you first join the vessel, Str. Lawsuit in 2000?

What was your work schedule for the three weeks preceding the accident?

Why did you work so many hours?

Was the vessel in an emergency situation, which required this extra work?

Did you volunteer to do this work?

Who directed you to work all these additional hours?

Does the defendant employ him?

In what capacity?

What extra work did you do during these 19 days straight of overtime?

What was the state of your health for these days preceding the accident?

On July 19, 2000, when did you start work that day?

How many hours did you work on the 16, 17, and 18 of July?

Mark as exhibit timeline of work hours and rest periods

Do you recognize this schedule?

Does it accurately depict the work hours and rest periods for the five days leading

to the accident?

As to the accident, what time was it?

What were you doing on the deck at the time?

Who were you working with?

Who was your supervisor at that time?

At the time just before the accident what were you doing?

Where exactly was seaman witness no. 1 and no. 2

What equipment were you using?

Had you been assigned to dock the vessel?

By whom?

What were you to do?

Mark pictures as exhibits to show witness of vessel and dock

How many times had you assisted in docking the vessel before?

Fill in specific facts of accident here

How were you injured?

Did anyone witness your injury?

Who and where were they standing?

Did you provide your version of the accident to your supervisor?

What did he do –Fill out accident report –get details

Is this your signature?

Can you tell the jury what it details as to the accident?

Was this completed right after you were injured?

After your injury where were you taken?

Were you given medical attention?

What hospital were you taken to?

How did you get there?

Hospital chart -- Mark as an exhibit

Did the doctor at the emergency room provide you information about your

condition?

What did he tell you?

Were you hospitalized, for how long?

What was the plan by the doctors?

What types of testing did they do?

What treatment did you receive?

Were you discharged?Can you describe your follow up medical treatment after the discharge from the

hospital?

Have you been given a prognosis as to your condition?

What is it—future medical treatment?

Who determines the crew requirements for a boat?

Does some federal authority set these requirements?

Does the Coast Guard monitor for work hour limit violations?

Are you familiar with the federal statute limiting work hours for seaman in your

position?

How many hours a day did you work in excess of the maximum set by the statute?

Did you complain to defendant’s personnel manager?

What was his response?

Did the company ever take any steps to find more deckhands to hire aboard the

vessel?

Were you told why none were in fact hired?

What would have prevented this accident?

What could defendant have done differently to prevent what happened?

Do you have a company safety manual?

What does it say about overwork and fatigue?

What were your wages for the last three years?

Did that include wages from your work during the off-season from the boats?

Are you disabled as a result of the accident?

Are you in pain?

Are you able to drive and do the chores around the house?

Who must do these things you can no longer do?

Has this caused a strain in your marriage—Tell the jury how

Describe any other relevant facts to the individual claim

From a defense counsel’s perspective a sample cross-examination of plaintiff follows:

DEFENDANT’S CROSS EXAMINATION OF PLAINTIFF

You reside with your wife in a home owned by your mother in law

You have no children or other dependents that rely upon you for support

When did you start sailing?

What companies did you sail for?

Do you recall signing discharge slips for these vessels?

You provided those discharge slips to counsel

You signed a verification that such information was truthful and correct

How many slips were there

You sailed on far less vessels than you indicated in your answers to Mr. Lawyer’s

questions

You have no other written proof of your sailing record although you have had two

years to compile such information

Taking you to the Str. Lawsuit the day of the accident.

You were due to be replaced by a returning employee with higher seniority

You were always subject to being bumped from the vessel if a senior employee

returned from vacation or leave, correct

In fact, after you docked he was to join the vessel and you were to get off

You have done a number of nonsailing jobs in your lifetime

You have done upholstery and have been a butcher

Those are both skilled jobs

Describe to the jury the pay rate available for each and the background of each

job

In fact, you do the upholstery job in your off season to make extra money

Why does it not appear on your tax return?

You have been employed for the last three years at Hydes Upholstery during the

off-season

You made an average of $5,000 per year working that job.

On the day of the accident when did you start work that day?

What time was it?

You were working with two other men to dock the vessel

What were you doing right before the accident?

You understand that substances and other items get on the deck during the

operation of the vessel

You had previously docked this vessel 35 times during your tenure

You walk the same deck countless times in a day

You understand that there are tripping hazards everywhere on a vessel

You provided the first mate with your version of the accident after it happened

He wrote down those details as you told him

Is that your signature on the accident report?

In the section about fault you indicated that it was not anyone’s fault, correct

At the time of the accident you did not feel that defendant was to blame for your

injuries isn’t that correct

Who was there when you got hurt?

Did anyone actually see you fall?

After your fall you were given medical attention promptly

You were removed from the vessel

Detail the medical attention, particularly if it was minor or routine in nature

As to the hours you worked for the days preceding did you ever talk with the

company personnel manager?

He told you that at every port where there is a union hiring hall they were

attempting to supplement the crew

You told him that you could do the overtime until someone was found

You have no reason to dispute that the company was searching for more help do you

It is in fact your union that sets the crew requirements for this boat

You allege that you are permanently disabled from working as a seaman as a

result of the accident

You have a lot of pain

Are you able to drive?

How were you able to attend the appointment with the vocational rehabilitation

expert last summer?

You were not accompanied by anyone

You did not take a bus or cab

You drove yourself in your auto to the appointment

REFRESHING WITNESS RECOLLECTION

In cross-examining the forgetful plaintiff who can’t seem to remember pertinent

facts, counsel on cross-examination needs to aggressively attempt to refresh the witness

recollection. By utilizing leading questions obtain an admission from the witness that at

some prior event he testified regarding the facts. Have him review the written record and

ask if it refreshed the witness’ recollection. If such a tactic is unsuccessful at prompting

the plaintiff’s memory then either impeach the witness with the writing or offer the

document independently. <Federal Rule of Evidence 613>

DIRECT EXAMINATION OF FACTUAL WITNESS

The prepared plaintiff’s counsel will work to get the relevant facts to establish

liability from questioning independent fact witnesses at trial. Illustrative direct

examination of the following shipboard work mate of plaintiff follows:

Seaman No. 1 Questions

Preliminary matters omitted

Occupation

How long have you been sailing?

What licenses do you hold?

What shipping companies have you worked for?

Are you currently employed?

By whom

What ship are you currently sailing on?

Was there a time you sailed on the Str. Lawsuit?

For how long

What positions did you hold while on the Str. Lawsuit?

Did you work with plaintiff Mr. Seaman aboard the Str. Lawsuit?

When

What watch were you on?

How is it determined who stands what watch?

What watch was plaintiff on?

Who was is plaintiff’s supervisor on that watch?

Who besides plaintiff and you were on watch in the engine room that evening?

During the stint between July 1 and July 19, how often did you work with

plaintiff?

What were your work hours for that time period?

How did you feel working such long hours?

Did you observe plaintiff’s demeanor during this time?

What did you see?

Did he ever complain about the hours?

To whom ?

Was he the company personnel manager?

What were plaintiff’s duties?

How was the quality of his work?

Did plaintiff sustain an injury aboard the vessel during this time period?

When

Was it while you were on watch with him?

What happened that day?

Did you witness his accident?

How did it happen?

What was he doing at the time?

Did you observe his energy level?

Was he visibly fatigued?

What did you observe?

Describe the procedure for docking the vessel

Does one have to be aware of alot of moving machinery while performing such

tasks?

What did you do after the accident?

Was plaintiff in distress?

Describe to the jury what you observed

Was plaintiff able to walk?

What did you do next?

Did he ask that an accident report be completed

Did he complete his shift?

When was he removed from the vessel?

Did you see him after that time?

Detail for the jury under what circumstance

TRIAL OBJECTIONS

Trial objections can be overused if counsel believes that every technical violation

of the rules of evidence must be challenged. Instead counsel should consider what effect

the evidence will have and how the objection will be received by the judge and jury.

Important objections must be made or the unwary attorney will compromise any appeal.

Everyone leads on preliminary matters and it is counterproductive to object. To bring out

quickly and concisely matters not in dispute is to save the courts and parties time and for

that everyone should be grateful.

Objections, which are repetitive in nature, should instead be presented by

objecting to the particular line of questioning. It is on the record and the continuing

objection will protect counsel on appeal. Every objection that is made should have the

expectation of success; too many overruled objections clue the jury into the fact that

counsel needs a remedial evidence course.

Since the maritime practice is so diverse and involves many different courts, it is

imperative to associate local counsel that will provide the predilection of the judge to

certain objections. If the matter that has raised the objection is so sensitive in nature, such

as a previous criminal record or substance abuse problem, counsel needs to craft the

motion in limine in advance so that a skewering question does not come before the jury.

In opening statement, plaintiff’s counsel should warn the jury that sidebar

conferences are necessitated at times, saving time, and assists in the search for the truth

within the bounds of the Rules of Evidence. Give an example of an objection and the

importance of why it would be sustained. Hearsay statements cannot be subjected to

cross-examination, thus there is no reliable way to test the truth and veracity of such a

statement.

If the evidence being presented does not hurt your case, why object. Two bad

things and only one good thing can come about as a result so why test the odds. Well

placed objections can assist a confused witness, particularly speaking objections. Above

all know whether the judge will tolerate such speaking objections in advance of doing so.

For example, objecting to a question that calls for an answer, which is beyond the scope

of your witness’ expertise, is a good way to assist the witness without making an

improper speech.

Finally, do not broadcast to the jury that some important piece of evidence is

coming in through a technically correct but attention getting objection. Instead ask for a

sidebar to raise the objection out of earshot of the jury. Objections should be carefully

orchestrated and counsel should research for case law to support one that may not be

obvious to the court.

Foundation issues arise in every trial. The following are common foundational

scenarios and a summary of how to overcome such foundational issues that have been

successfully used at trial. Also introduction of opinions by lay and expert witnesses are

also covered in this section.

Foundation – Lay Witness

1) First hand knowledge – qualify – oriented;

2) Authenticated – what it purports to be;

3) Relevance;

4) Best Evidence Rule – Prove contents document – Introduce original or

account for its absence. Most show why absent - unless spoiled by client. Must

complete search to try and find. Photocopies freely admissible. Produce documents

when proving contents. Recollection can substitute must be independent;

5) Hearsay (1) Out of court statement;

(2) Offered for truth

Procedural prerequisites:

(1) Confrontation – prior inconsistent statement;

(2) Corroboration;

(3) Notice – in advance of testimony;

(4) Attack credibility first;

(5) Medical --Do you hold opinion reasonable medical

scientific certainty.

Foundation – Introduce exhibits and have marked;

Show opposing counsel;

Witness lay foundation;

After proffer – opponent, object and can do voir dire; and

Then can have testimony and publish exhibits.

Proper Foundation for 10 Most Common Scenarios

Photos – (1) Relevant – fair and accurate representation of relevant scene can lead

the witness (The Rules of Evidence. don’t prohibit leading in laying preliminary

foundation.)

(a) Is exhibit a fair and accurate representation.

(b) Don’t show jury before introduction.

Maps – Charts (1) Are sufficiently accurate to aid testimony – to help jury

understand.

(a) To scale-admissible.

Real Evidence (1) same item that has not been tampered with.

(a) Relevance – must lay chain of custody

(1) Produce whose custody from inception - civil is not as

stringent.

Telephone Communications (1) Authentication.

Any chain circumstances – recognized caller’s voice, called telephone number

and was listed in telephone book.

Communication has unique information within limited knowledge.

Circumstantial – called correct phone number or person has peculiar knowledge.

Letter – recognize handwriting.

Knowledge – same signature; expert testimony; jury comparison.

Business Records – Consult relevant state statute on use in litigation

Routine – record make in ordinary course business.

Relevant – Made in the ordinary course business to make record.

– not made with view toward litigation;

– facts observed by someone in business of doing it – had duty

to report police;

– record custodian or other qualified person.

Lay opinion:

Ordinary observable by the common person with no specialized

training. (i.e. speed, time)

(1) Rationally based (2) Observation will assist the fact finder

Expert opinion:

(1) Knowledge, skill;

(2) If the expert doesn’t know facts first hand can use hypothetical

question;

(3) Have opinion with reasonable degree medical probability.

Prior inconsistent statement – Rule 613:

Confront with particularity;

Must confront witness and give the opportunity to explain.

PLAINTIFF’S TREATING PHYSICIAN

In order to effectively prove the essential elements of plaintiff’s injuries

and resulting damage, counsel must employ a credible physician to testify about the

injuries plaintiff sustained and the future prognosis. The following question and answer

illustration details an orthopedic surgeon that treated plaintiff’s injured knee surgically.

DIRECT EXAMINATION OF PLAINTIFF’S TREATING PHYSICIAN Q. What is your profession?

A. Orthopedic surgeon.

Q. Do you have a curriculum vitae?

A. Yes.

Q. Would you describe for the jury what that constitutes?

A. It is a listing of all pertinent information involving education, residency, internship,

medical school and presentations and publications.

Q. Is this document your curriculum vitae?

A. Yes.

Q. Does it accurately represent your training, education, and licensure?

A. Yes.

Q. Would you summarize your education and training?

A. I attended the University of Virginia for my undergraduate and attended the Services

University of the Health sciences, a military medical school. I did a surgical internship in

Bethesda, Maryland. I did my orthopedic residency at the National Medical Center in

Maryland.

Q. What hospital staffs are you on?

A. I am on the staff at the Naval Hospital in Virginia, and the Memorial Hospital.

Q. Do you teach at any medical school in this area?

A. I teach at the Virginia Orthopedic Center.

Q. What is the American Board of Orthopedic Surgery?

A. It is a board that recognizes specialized training and testing in the area of orthopedic

surgery.

Q. What are the requirements before the board can certify a physician?

A. You must take a written test, practice for two years, and collect cases for a six month

period and then sit before four oral examiners, who review ten of your cases and decide

whether or not you will be board certified. Board certification is good for ten years.

Q. Have you attained such certification?

A. Yes. I did it in 1995.

Q. Have you written any papers that have been published in various medical and surgical

journals?

A. I’ve published six articles and I have done numerous presentations to various meetings

and peer review committees.

Q. What is the nature of your practice now?

A. Orthopedic surgery.

Q. How often do you perform surgery?

A. I average 20 cases a month.

Q. So you are active in treatment of patients?

A. Yes. I treat a variety of patients and conditions.

Q. What conditions do orthopedic surgeons regularly treat?

A. Diseases of the muscular skeletal system.

Q. During the course of your practice do you treat maladies of the knee?

A. Yes.

Q. Have you been qualified as an expert witness in this or other courts?

A. Yes. I have testified in countless state and federal courts.

Q. Do you evaluate service connected disabilities?

A. Yes. I do that for the Veteran’s Administration.

Q. Did you treat Mr. Seaman, the plaintiff in this case?

A. Yes.

Q. On what date did you first see him?

A. August 12, 2000.

Q. Where was the exam done?

A. At my office in Central City, Virginia.

Q. Did plaintiff talk to you about his injuries?

A. He told me that he was involved in an accident aboard a commercial ship and had hit

his knee on something directly, a direct impactation on his knee, and had been treated at a

facility close to the incident which performed an open reduction internal fixation. He

continued to have pain and later x-rays revealed a nonunion. A tomogram was obtained

which showed a nonunion as well.

Q. What is history?

A. It is what the patient tells you regarding the mechanism of the accident and injury.

Q. Did he have prior complaints of pain/limitation in his right knee?

A. Most definitely.

Q. Do specialists in your field rely on materials other than direct observations in reaching

their evaluations?

A. Yes. We review other physician’s and medical facility reports on past care of the

patient.

Q. Did you have access to such materials in your assessment of plaintiff?

A. Yes. I had Memorial Hospital and Dr. Jones reports of his open reduction procedure.

Q. What previous treatment did plaintiff have to his right knee?

A. He had two screws placed through the patella. The screws are placed from proximal,

to distal uniting the two fractures.

Q. I'm going to ask questions re your opinions and conclusions, and I ask that you base

your answers on your professional training, experience and skill and on reasonable

medical probability and certainty.

A. Yes. Okay.

Q. As to your first examination please tell us what you did.

A. I did a complete knee examination utilizing x-rays and other supporting range of

motion tests etc.

Q. At that time did you review previous x-rays and tests?

A. Yes, that is how I knew about the placement of the screws to unite the fracture during

the open reduction.

Q. Did you do a tomogram?

A. Yes and it confirmed that Mr. Seaman had suffered a nonunion of the fracture.

Q. What treatment did you prescribe for him?

A. I opened the patella and explored the site using C arm fluoroscopy, which is like a

live x-ray of the previous fracture, and there was no evidence of fibrous union. The two

screws were located and removed. There was no evidence of any micro motion at the

previous fracture site.

The previous fracture line was visible with scar tissue. The tissue was removed. He had

some arthritic changes immediately underlying the scar tissue and this was addressed by

pressing small holes into the defect. It drills channels so that blood vessels can come

down through and undergo a transformation into some hyaline cartilage tissue to cover

the exposed bony surfaces and provide pain relief.

Q. How did his recovery progress from that surgery?

A. We got him involved in a vigorous physical therapy program at the Central City

Hospital. He also did quadriceps rehabilitation.

Q. What were plaintiff’s complaints during the course of healing?

A. He continued to have extreme pain in the area, especially with loading the knee such

as going up and down the stairs.

Q.What was done next?

A. He continued to have extreme pain so the option of a total patellectomy was discussed

with the patient. He desired total relief of the painful knee in one operation and did not

want to face the possibility of one in the future.

Q. When was that done?

A. September 22, 2000.

Q. Can you tell the jury what was done to plaintiff’s knee?

A. A total patellectomy is the complete excision of the kneecap or patella, by utilizing the

previous incision, and like a peanut, shell the patella out and close the defect up in the

quadriceps tendon.

Q. In closing that defect, how do you, without the kneecap, bring the musculature back

together to compensate for the absence of the patella?

A. You do a midline split of the patella. The muscle fibers of the quadriceps do not have

to be cut because of the direction they run. Closing the defect gets rid of the potential

space, which could otherwise act as a spot for infection. The quadriceps are already

weakened so you don’t want to cut through a single muscle fiber.

Q. How did his recovery progress from that surgery?

A. He continued to have pain so we got him into a physical therapy program. The natural

history of a patellectomy is that there is permanent quadriceps weakness. They lose

muscle strength. He continued to have weakness in the patella region and to accompany

the PT we used steroids.

Q. What was done as follow up care?

A. A biodex test.

Q. What is the purpose of this test?

A. It looks at extension and flexion. Extension is the quadriceps, flexion is your

hamstrings. We measure a percent deficit between the two. We look at the total work and

measure the total percent deficit. He showed an 88 percent deficit between the left and

right leg and a 99 percent deficit at the faster speed. Which means the unaffected leg

could lift almost twice the weight of the compromised leg.

Q. Did you review the findings?

A. Yes. His quadriceps strength had not really improved after the second surgery,

although he did have some pain relief. Hw was not having any of the catching or

grinding that he had exhibited previously.

Q. How does that relate to plaintiff’s ability to use the knee?

A. He was not able to become fit for duty at this status.

Q. What are the implications in his everyday life?

A. He continues to suffer residual weakness and pain, which affects his mobility.

Q. Did you reach a conclusion, based on Mr. Seaman’s history, your examination and

treatment, the x-rays and tests you had taken, and the previous medical records that you

had available in 2000 as to Mr. Seaman’s condition at that time?

A. Yes.

Q.What was that conclusion?

A. That he is disabled from shipboard work due to an inability to move his leg in those

tasks necessary to work as a seaman in his job capacity.

Q. What part did the injury plaintiff sustained on the boat managed by defendant in July

2000, play in his complaints at the time of your treatment?

A. The injury is related to the nonunion and his present disability and complaints.

Q.How does the nonunion and removal of plaintiff’s kneecap affects his mobility?

A. He has reduced mobility and cannot jump, squat or lunge like someone with an intact

patella.

Q. Do you expect arthritis to develop as he ages?

A. Mr. Seaman has started to develop posttraumatic arthritis. It is progressive, one can

predict the weather changes as low pressure comes in and high pressure goes out.

Because of the patellectomy he is also at risk for slightly higher incidence of needed a

total knee replacement than the standard population.

Q. Since your treatment of plaintiff in 2000, you have had access to additional medical

records concerning Mr. Seaman?

A. Yes.

Q. Did you review the findings and opinions of defendant’s doctor?

A. Yes. I found that the arthritis is progressing, and plaintiff has developed atrophic

changes in the leg and has experienced increased pain in the knee since I followed him.

Q.Were these records the kind that normally are relied upon by orthopedists in forming

conclusions?

A. Yes.

Q. Are defendant doctor’s findings and opinion consistent with those you found after the

surgeries were completed?

A. Yes entirely consistent.

Q. Has plaintiff’s condition deteriorated?

A. Yes. He has lost muscle bulk due to nonuse and the quadriceps are continuing to

weaken.

Q. As of today, based upon your treatment of Mr. Seaman, the history he provided to

you, and your review of his charts and films, do you have an opinion as to what part, if

any, his accident on the Str. Lawsuit in July of 2000 plays in his present complaints?

A. Yes. He current problems are directly related to his shipboard accident of July 19,

2000.

Q. Will plaintiff have residual weakness in the knee?

A. Yes. His weakness has not improved.

Q. How does this relate to his tolerance of daily activities?

A. He will tire more easily in performing day-to-day activities. There are some activities

he will no longer be able to do like hand mowing a lawn or pushing a snow blower.

Q. How will plaintiff’s injury affect his ability to work?

A. He cannot go up and down shipboard steps and would not be able to move quickly to

throw lines to dock the vessel. His knee could also compromise his ability to exit the

boat in the event of an emergency. He will not have the mobility to move quickly and

tackle climbing obstacles.

Q. In the event that plaintiff required a total knee replacement is that a permanent fix for

his problems?

A. No. Knee replacement systems are good for about fifteen years and he will have to

undergo replacement more than once depending upon his life span.

CROSS-EXAMINATION OF DEFENDANT'S PHYSICIAN

It is just as important for counsel to effectively cross-examine the physician

retained by defendant. It is likely that the defense physician will have only examined

plaintiff for the purpose of the lawsuit. At the deposition or before the expert testifies

ask to review his entire file on plaintiff. Review it carefully and obtain entire file of

doctor if he treated plaintiff on previous occasions. Counsel must know the facts and the

particular area of medicine. Counsel needs to obtain previous testimony of the physician.

Does the physician never find a disability of any kind in any plaintiff he has examined.

It is important to ask questions in a manner that elicits a yes or no response so that

the physician does not have the chance to explain. There are two ways to cross-examine

the medical expert. The first is to show the medical witness deviated from the standard

of sound medical practice; the conclusions are not valid; or the witness performed a

cursory examination of the plaintiff. The second way is to impeach the medical witness

on his lack of education and experience for this particular malady; the witness has

testified for the defendant; the witness does not actually practice medicine, but instead

derives a vast income from testifying and examining plaintiffs.

If counsel can impeach the defendant’s medical witness by using medical

literature, the foundation for such an attack must show the literature is authoritative in

that field of medicine. The use of the treatise is governed by <FRE 803 (18)>, which

provides:

(18) Learned treatises. To the extent called to the attention of an expert witness upon

cross examination or relied upon by the expert witness in direct examination, statements

contained in published treatises, periodicals, or pamphlets on a subject of history,

medicine, or other science or art, established as a reliable authority by the testimony or

admission of the witness or by other expert testimony or by judicial notice. If admitted,

the statements may be read into evidence but may not be received as exhibits.

Be aware to the fact that likewise defense counsel will utilize the learned treatise to its

benefit as well. The medical witness is a dangerous one due to training and general

esteem in society. Never engage in arguments with the medical witness, instead gain

concessions, which may be used in closing argument.

An illustrative cross-examination of the defendant’s doctor appears below.

CROSS EXAMINATION OF THE MEDICAL WITNESS

You are not board certified in the specialty of orthopedic surgery

Your practice is limited to the treatment of knee maladies

You perform no surgery

Plaintiff provided you with the history of his medical condition and how he was injured

You were able to verify these facts in the medical chart and in the accident report

Plaintiff was not exaggerating as to the history of any particular fact was he?

History is an important part of the basis for your opinions, which constitute the diagnosis

and prognosis

The complaints provided by plaintiff could be verified by objective medical testing,

correct

Explain to the jury what objective testing constitutes

You verified the patellar disunion through objective testing

Explain to the jury how the patellar functions

Point out in your report those complaints that are subjective v. objective in nature

Complaints of pain are subjective

Are there ways to verify those complaints?

Were you able to do thermograph to test the temperature range of the knee?

How does a positive finding on this test relate to complaints of pain?

Doctor did you observe how plaintiff moved

Did you note the way he walks, got on and off the examining table etc?

What did you observe?

His gait was not normal was it?

What tests did you perform?

Detail each test and the result if favorable

How is that test performed?

What is the purpose of such a test?

Did you perform (a standard test not done) on Mr. Seaman?

How is such test performed?

What is the purpose of that test?

Why did you not use it?

You noted atrophy on the right side

What is atrophy?

It is associated with disuse of the muscle

It wastes away

It is not reversible in Mr. Seaman’s case

CROSS-EXAMINATION OF THE DEFENDANT

In order to be successful on a statutory work hour limit violation, it is imperative

to effectively cross-examine defendant’s personnel manager. There are generally two

purposes to cross-examination: to show that the testimony of the opposition’s witness is

not accurate to rely upon or to obtain supportive information of one’s own evidence.

If in fact the defendant’s witness is inaccurate there are a number of factors that

influence it, such as conflict with other evidence, conflict with what the witness has

testified to in an earlier proceeding or in a written document, faulty reasoning by the

witness either due to a mischaracterization of the evidence or arriving at a conclusion not

supported by the evidence or witness dishonesty. The witness may be dishonest based

upon a bias either in favor of defendant’s position or some malice directed towards

plaintiff. If the personnel manager is in a small company and has a direct personal stake

in the outcome such a fact would definitely support the basis for dishonest testimony.

Techniques of cross-examination have been written about at length in other trial

articles. Some useful techniques to remember are to not ask a question to which you

don’t know the answer. Although this is a good general rule, sometimes the enticement

of what discovery may lie is too much for the questioner and this rule is ignored. If you

are going to violate this rule, ask rather general questions to ferret out the witness’

anticipated testimony on the benign questions. If the witness is headed in a direction that

is dangerous, conclude the topic with a question to which the answer will not harm your

position and move on.

Another technique is to plan the exact answer that you want and work towards it

using leading questions. Ask the witness only questions with guaranteed outcome

answers. Use your witness to develop a story. Control the witness with short questions

that can be answered with short responses. Cross-examination is not meant to elicit

drawn out testimony. Keep it short and get to the important points.

It is imperative to pin the witness down as to exactly what his testimony is at trial

if it conflicts with earlier consistent statements. Once you have a clear parameter of the

testimony, it is much more forceful to impeach using the earlier statement. Above all

when using this tactic do not ask for an explanation. Any explanation is to be saved for

redirect of the witness.

If you are cursed with a rambling witness, break in if the witness has gone beyond

what has been asked for or is not responsive in to counsel’s question. Motion to strike

non-responsive replies and involve the judge in curtailing the witness’s rambling

testimony. If the judge will not assist you, then continue to strike the non-responsive

portion so that the record is preserved for appeal.

REDIRECT EXAMINATION

The purpose of redirect examination is to salvage and rehabilitate the witness by

allowing the witness to explain a damaging response elicited on cross-examination. It is

also used to clarify any confusion that may have arisen during cross or finally to punish

the opposition for pursuing testimony that should not of come out which is dangerous to

its case but helpful to yours.

Restrict your redirect examination to only those subjects arising from cross-

examination and do not do a redirect except for a specific purpose. Know what it is and

plan it out beforehand. Conduct the redirect examination with confidence, if it does not

accomplish the aforementioned purpose it should not even be undertaken because it can

serve to underscore the opposition’s effective cross-examination.

The following is a sample cross-examination of defendant’s personnel manager in

a case based upon a claim for injuries that plaintiff sustained due to fatigue and overwork.

CROSS-EXAMINATION OF DEFENDANT’S PERSONNEL MANAGER

Q. Mr. PM you have been defendant’s personnel manager for the last seven years

correct?

A. Yes.

Q. Seaman typically work a lot of overtime while on the boats?

A. It varies. Some people are overtime hungry, some people do not want the

overtime. The only way you can require overtime is for the safe navigation of the vessel

in an emergency which is not only governed by 46 U.S.C.A. §8104, but is also in our

contract.

Q. The typical sailing season starts when?

A. It varies from ship to ship but the vessel locks opening date is March 15.

Although we have ships fit-out as late as April.

Q. But generally the shipping season is underway March 15?

A. I would say by the end of March most shipping is underway.

Q. The sailing season goes until there is too much ice to sail?

A. Yes, it goes until weather conditions prohibit you from travel.

Q. And that is normally after January 1st?

A. From the end of December to the end of January. Last year it was January

29th because it was a banner year.

Q. Was last year a banner year for shipping?

A. Yes, as far as cargo carried it was a banner year.

Q. When a seaman goes to work for defendant and he becomes a permanent

employee does he remain on the vessel for extended periods of time?

A. Yes.

Q. In a typical week will a sailor work 40 hours or more in the seven-day work

week while the ship is at sea?

A. They work straight time and are guaranteed a 40-hour week.

Q. If the ship is out on the lake for seven days, does the sailor have two days off

during those seven days?

A. If they are watch stander they will work all seven days.

Q. So they are going to get overtime pay automatically under those

circumstances?

A. Yes.

Q. What is the average overtime that a person in plaintiff’s position would make

in given year?

A. I don’t know.

Q. Is it a significant figure?

A. Yes.

Q. Is that typical of overtime work?

A. That is typical. And it varies from seaman to seaman. At a minimum they

work 60 hours a week just because they get paid overtime for the weekends, Saturday and

Sunday.

Q. Because they are working Saturday and Sunday they actually pickup an extra

20 hours in a typical week?

A. It varies on a traffic pattern and the bigger ships run a longer haul so they have

less overtime because they have fewer unloads and fewer dockings.

Q. Some of the smaller boats that are on short hauls have a much higher overtime

rate because of the higher number of unloads and docking.

A. Yes. Overtime is a fact of life in the maritime industry.

Q. Not only does overtime exist by virtue of working seven days straight and

being paid time and half for over 40 hours, but it is also not uncommon to have overtime

work offered over and above that on these vessels?

A. Yes.

Q. It is your experience that many seamen when they are working take all the

overtime possible because they are out there to make money and want to make as much

as possible?

A. It varies from individual to individual. Some do not want the overtime they

just want to put in their minimum hours.

Q. The majority of them are out there to make the most money they possible can

is this not this correct?

A. Yes.

Q. You work eight hours everyday by standing a watch if you are a watch

stander?

A. That is correct.

Q. If you are going to do overtime it is in addition to the eight hours everyday?

A. That is correct.

Q. Often overtime is required if the vessel is docking or loading and unloading if

you are an employee in the deck department, correct?

A. We cannot require overtime unless it is for the safe navigation of the vessel.

Q. Is loading and unloading a circumstance when overtime is mandatory?

A. That is a gray area. The labor union might differ with you on that subject. It

hasn’t presented a problem on our vessels because most people are overtime hungry and

if somebody turns down the overtime opportunity, another employee from another

department or someone else within that department will work the overtime.

Q. Is it a fact of life aboard the ship that all hands are needed at the time of

loading and unloading a vessel and those people who are not watch standing generally

assist in that process?

A. The people that are standing their watch and would normally be engaged in

navigation of the vessel are now engaged unloading the vessel once it docks. There are

other people who are offered overtime to assist in the unloading of the vessel.

Q. Is extra work being done during loading and unloading?

A. Yes. People are working at an overtime rate. During the unloading of the

vessel you need people at the bottom of it opening gates. It is more of a labor-intensive

activity than the loading of the vessel. When they are loading the vessel you can

accomplish that by using the people that would normally being standing their watch.

Q. How many days typically elapse between ports?

A. That varies on the ship and the load. Some trips can be made in little over a

day. Our maximum round trip is six days depending on other vessel traffic.

Q. Do you call in ports much more frequently on the lakes then you do on the

ocean?

A. Yes. We have no deep-sea operations.

Q. I understand that but you are familiar with ocean shipping?

A. Through my sailing years, I am.

Q. You arrive in port much more frequently in the course of a given week in the

Great Lakes than you do on the ocean?

A. Yes.

Q. When a vessel reaches port it doesn’t matter what time of the day or night the

work must commence?

A. Yes. We work on a 24-hour schedule.

Q. And overtime work results from this?

A. Yes.

Q. What are the days off for a man in plaintiff’s position aboard the vessel?

A. For our licensed crew it is based on years of service and the number of days

worked the previous year. During the season I believe it can be upwards of 12 weeks.

Q. Between those vacation times off the vessel, do people have the opportunity to

go ashore?

A. Depends on your job aboard, if the question is will they have the opportunity

to go up the street, it depends what department they are in and what boat they are on. It

varies with the port, vessel and unloading and loading time.

Q. Did you speak with plaintiff in the seven days prior to his injury?

A. Yes.

Q. What was the substance of the conversation?

A. I told plaintiff that I knew he was working alot of and we were attempting to

procure additional help at every port we were going into.

Q. Exactly what action did you take to find extra help?

A. I contacted the union hall at each port to see if there was extra personnel.

Q. Did you ever place ads in the newspaper; consult any temporary agencies?

A. We must have sailors trained in the job and because we are unionized we

work through the local union hiring halls.

Q. Did you try to contact retirees of the company or previous employees that

worked aboard these vessels and would have had the requisite training?

A. No I did not.

Q. Plaintiff complained to you about being dead on his feet on two different

occasions in the week prior to his accident, is that not true?

A. I talked with plaintiff on those occasions and he said that he was fine to work

those hours.

Q. The vessel was never in extremist during this time, correct?

A. Correct.

Q. Plaintiff did not volunteer to work the nineteen-hour workdays?

A. That is not true.

Q. Plaintiff was directed by the master to work these hours the day prior to the

accident?

A. Plaintiff was requested to work and he agreed to out of his own free will.

Q. As a personnel manager of defendant are you familiar with 46 U.S.C.A. §8104

A. Yes.

Q. Plaintiff’s work hours violated the rest periods required by this statute?

A. We were making efforts to procure additional personnel.

Q. You are not answering what I asked.

A. Technically it is a violation, but plaintiff volunteered to work such overtime.

Q. Regardless the statute does not allow for a violation of the work limit unless

the vessel is in some extremist position or it is necessary to navigate?

A. Yes.

EXAMINATION OF EXPERT WITNESSES

The use of expert witnesses has been extensively examined in this article.

Besides the qualified marine expert, and treating physician, in instances where plaintiff

has been disabled from his job as a seaman, special problems of proof are presented.

Sailors either train at maritime colleges or work their way up through the ranks and can

be limited in their employment. Due to the specialization attributed to sailing, those jobs

skills that one uses aboard vessels are not easily transferable to other work at the same

caliber of pay. Therefore, it is an important consideration in cases where there is a

complete disability of plaintiff to employ the services of a vocational rehabilitation expert

to evaluate the employment capability of a plaintiff.

Examination of any technical expert involves careful detailing of the educational,

employment, experience in area of expertise, publications, memberships in relevant

societies within the area of expertise, including any honors given by the society, the

number of similar occurrences investigated, the number of prior court appearances and

the ratio between plaintiff and defendant evaluations in order to qualify the witness to

testify.

It is imperative to lay the foundation for the witness’ opinions. Have the witness

describe the materials reviewed such as the accident report, witness depositions and

statements, photographs and videotapes, blueprints or other drawings, company records,

and review of the plaintiff and any other experts that have been deposed or testified.

Have the expert describe what his investigation entailed including any accident scene

investigation, photographs and videotapes taken, measurements made, tests performed,

interviews done, review of governmental or industry regulations and standards, and

review of the authoritative publications on the subject.

The expert’s opinions must encompass the negligent acts of the defendant, and

why such acts were the proximate cause of the accident. The factual basis of the expert’s

opinions must provide the supporting evidence including the investigation done, the

authoritative regulations or standards that apply and how it supports the expert’s

opinions.

The expert should also refute any competing opinions of the opposing parties’

expert and why the expert’s opinions are erroneous. Have the witness point out that the

opposition’s expert failed to consider all the evidence, did not correctly conduct the

investigation, was beyond the scope of his expertise, was erroneous in the measurement

of any relevant calculations, and was not supported by other authorities or by the

applicable authoritative literature in the field.

The following is an illustrative example of plaintiff’s direct examination questions

and answers of a vocational rehabilitation specialist that examined plaintiff.

Q. Would you state your full name for the record?

A. Mr. Vocrehab

Q. And what is your profession?

A. I'm a rehabilitation counselor

Q. Where do you practice?

A. Both in New York and New Jersey.

Q. Would you summarize your educational background for the jury?

A. I have a Bachelor's degree in rehabilitation counseling from the Pennsylvania

State University and a Master's degree in rehabilitation counseling from the Pennsylvania

State University. After receiving my Master's degree in rehabilitation counseling, I

completed the 60 credits required towards a doctorate but left the university with my

dissertation to be completed.

Q. And can you describe briefly, what are the requirements for one to become a

vocational rehabilitation counselor?

A. Individuals who are vocational rehabilitation counselors or rehabilitation

counselors should have a Master's degree in rehabilitation counseling which is the

minimal requirement and have national certification which is referred to as a certified

rehabilitation counselor.

Q. What does the practice of vocational rehabilitation counseling encompass?

A. As a rehabilitation counselor, I'm involved in working with people that have a

variety of different disabilities or handicaps. These could be physical disabilities,

cognitive disabilities, emotional disabilities, psychological disabilities; these could be

sensory disabilities such as an individual being visually handicapped or having a hearing

impairment. We work with the clients to determine what their strengths and their

limitations are, essentially the impact of their vocational handicaps on their ability to

function in the world of work; we provide counseling, vocational testing and evaluation,

work adjustment and then we hopefully find jobs for people given their various

limitations. That's the primary focus of somebody who's a rehabilitation counselor.

Q. And is this the scope of your profession?

A. Yes.

Q. Would you summarize briefly your past employment?

A. Upon graduating from Penn State in 1973, I became employed as a

rehabilitation counselor at the Federation of the Handicapped in New York City. At the

Federation I was involved in working with people that had severe physical disabilities as

well as people that had developmental disabilities. I was involved in performing the same

four basic modalities or treatment methods that I mentioned before: Individual and group

counseling, working with the clients to assist them and adjusting to their disabilities as

well as counseling them as to a feasible vocational or educational goal.

Secondly, I was involved in performing evaluation and testing, evaluating the

clients to determine what their interests, their aptitudes and their vocational capacity was,

essentially how their injuries impacted on their ability to do work.

Thirdly, I was involved in work adjustment which meant that I prepared people

for employment by working on any negative work behaviors that could interfere with

their ability to work at a competitive level in the workplace, and lastly, I was involved in

job placement services locating jobs that the clients could do given their various

capabilities.

I did that for about a year-and-a-half and in 1974 became employed at Mount

Sinai Hospital, Department of Rehabilitation Medicine in New York City. At Mount

Sinai I supervised their vocational facilities which consisted of a shelter workshop

program and a vocational evaluation and testing program. I worked with a population of

people that had both physical disabilities and a population of people that had psychiatric

disabilities.

I served as the liaison counselor between the Mount Sinai Vocational

Rehabilitation Program and the state vocational rehabilitation program, and at Mount

Sinai I supervised five professional staff members. I've had my own direct vocational and

rehabilitation company called Rehab Services. I work with a wide variety of people who

have different disabilities. I work with people that have sustained injuries to their knees,

to their lower extremities, people that have sustained amputations, people that are

wheelchair bound, people that have cognitive disabilities and people that have visual

handicaps and have hearing impairments.

Our goal is to try to move them back to work, using the same modalities that I

mentioned before: Counseling, vocational evaluation, placement services, work

adjustment and job placement. We also provide what's called life care planning services

and case management services for the people that are more severely and catastrophically

injured and work with them to assist them in obtaining the type of care they're going to

require over their lifetime.

Q. And do you belong to any professional organizations?

A. Yes. I belong to most of the professional organizations in my field.

Q. Can you describe specifically what the American Board of Vocational Experts

is?

A. Yes. I'm a diplomat of the American Board of Vocational Experts which is a

credentialed organization for people who do evaluations dealing with litigation-related

matters.

Q. And how long have you been one?

A. Since the -- I think it's the late '80s which was the first time they had diplomat

status.

Q. And what does that process involve?

A. The process involves a review of experience that you've had dealing with

evaluations as to the employability of people. Most of the people that are involved in that

particular organization got their initial start-up, serving as an expert for the federal

government.

You have to be an expert for a number of years and then you have to have your

credentials looked at and your work product reviewed by the Board.

Q. And you mentioned that you had done work for the federal government?

A. Yes.

Q. And what did that involve?

A. I served as a vocational expert for the Office of Hearings and Appeals, Social

Security Administration, being called by the federal U.S. administrative law judges to

render opinions as to the employability of people who are seeking disability benefits. In

that capacity I evaluated and participated in approximately 2,000 hearings.

Q. And have you been previously qualified as an expert in court?

A. I have.

Q. Where and how many times?

A. The majority of work that I've done has been in the New York area. I

testify approximately, on an average for the past three years, it's been about 20 to 25

times a year. I've been approved and testified in Illinois, Massachusetts, Connecticut,

Florida and Virginia.

Q. At my office's request, did you have occasion to evaluate the plaintiff in this

case.

A. Yes

Q. What did that involve?

A. The evaluation of Mr. Seaman involved four parts. The first part involved a

review of various records that were forwarded to me by your office; the second part

involved a standard vocational interview; the third part involved the administration of a

battery of vocational tests to see what type of work Mr. Seaman could or could not do,

and lastly, all of that material was reviewed and an opinion was reached as to Mr.

Seaman's employability and his earning capacity.

Q. Do you have anybody that assists you in this evaluation?

A. Yes my associate, Mr. Assistant.

Q. What is his role in this vocational interview and analysis?

A. Mr. Assistant is a rehabilitation counselor with as many years of experience as

I have, and we work closely in doing the cases together, so we will do the interview

together and we will work with the client in order to do the testing together.

Q. What did the evaluation of the plaintiff consist of?

A. I reviewed records from your office. I had a hospital record, I also had

various doctors' reports, I had a physical therapy report, and I had some records from the

plaintiff's employer.

Q. And after you reviewed the records was a standard vocational interview

conducted?

A. Yes. An administration of a battery of vocational tests to find out what he

could and could not do.

Q. Can you describe what the purpose of these battery of tests involved?

A. The purpose of the testing is to assess Mr. Seamen’s vocational capacity,

aptitudes as well as his skills to determine whether he had learned any particular skills

that could be used in the labor market from his employment. So essentially the

evaluation evaluated whether he could go back and do any of his prior work, whether he

could use any knowledge to perform some other type of work involving less physical

demands, and the answer to that was no.

Q. What methodology is used when you conduct this testing?

A. The testing that's done is all standard, meaning that the American

Psychological Association has approved the tests used, which is the credentialed

organization for vocational testing. All the tests have been found to be what we term

reliable and valid, which means that they purport and do measure what they show --

meaning that if Mr. Seaman was evaluated today on the same battery of tests and his

condition physically was the same essentially the same result should be exhibited. His

scores were compared to people that were working in industry, because the goal of the

evaluation was to find out, if he could work in industry and at what level of work could

he work in industry.

Q. Can you briefly describe each test that you administered to Mr. Seaman, the

results and the observations made?

A. The first test administered to Mr. Seaman is a test called the Wide Range

Achievement Test, and it's a test that we use the acronym of the WRAT Test, and the

purpose of a Wide Range Achievement Test is to measures a person's functional

academic capability or essentially what they know. It differs from their IQ score in that

an IQ score gives us an intellectual potential, but in looking at whether somebody can

work and the type of work they can do, the functional capability is more important to a

rehabilitation counselor.

Plaintiff's score on the first test-- which is the reading section which consists of

word recognition -- placed him in the post high school level compared to people of his

own age. That meant that he scored higher than 48 percent of the people that took this

test. The second part which is the spelling test, and this is just like the same type of

spelling test you and I had at school where he's given a word, it's used in a sentence and

it's given again and he's asked to spell the word as best as he can. He scored in the high

school level placing him in the 47th percentile compared to people of his own age.

The last part of the test is the arithmetic section, and his score was at the high

school level placing him in the 52 percentile. He worked in a seated position when he

performed this particular test, other tests that were administered to Mr. Seaman is a test

called the Bennett Hand Tool Test, and this is a test that measures Mr. Seaman's ability to

use large hand tools and it also involves standing and bending when he performs this test,

so it would be indicative of the ability to perform light to medium types of work

activities. His score on this test was average compared to the male job applicants norm

group.

The next test is the Purdue Peg Board Test, and that's a test that was developed by

the industrial psychology department at Purdue University, and the test is important in the

fact that it measures the person's ability to use his hands quickly and accurately, and we

get a measurement of the person's ability to use both their right and their left hands as

well as to assess coordination of their hands. The first part of the test involves

manipulating some pegs using the right hand, his score was average compared to the

male industrial applicants norm group, and it should be noted that he's right-handed. On

the left-hand section his score below average, on the both-hand section his score was

average, and on the four-part assembly section his score was above average compared to

the same group.

The next test was the Valpar Simulated Work Sample which is a test that's done in

a standing position, and it measures his ability to perform a three-part assembly on a

conveyor-like apparatus. The items on this test move towards and away from him, so

there's some time limitation in his ability to perform the three-part assembly. His score

was below average compared to a skills center norm group. He reported experiencing

pain in his right knee and stiffness in the knee when he performed this test.

The next test was the Vocational Aptitude Battery Finger Dexterity Test which is

a test of his ability to perform a five-part assembly, and the items in this assembly are

small to the point that they can only be assembled with his fingertips. The test is

performed in a standing position. His score on this test was average compared to the

competitively employed norm group.

The next test administered was the Vocational Aptitude Battery Form Perception

Test and that's a test that measures his ability to compare various pictures and detail

which of the pictured items that he's shown are the same, a visual inspection test. As you

could see, his score was average compared to the competitively employed norm group

and this test was done in a seated position so this would be indicative of sedentary type of

work activity.

The next test is the Employee Aptitude Survey Verbal Comprehension Test which

is essentially a definition type of a test that measures his ability to use words in oral and

written communication. He did report experiencing headache-like pain when he

performed this test.

The next test was the How to Supervise Test which is the measurement of various

supervisory behaviors and aptitudes, and his score was below average compared to a

supervisor norm group.

Tests of functional capability were done next. The first test being the West

Evaluation Device Unit No. 2, which is a piece of apparatus that measures Mr. Seaman's

ability to lift weights along a vertical area, and he has to bend, kneel, squat as well as

raise the weight above his head in order to perform this test, and he had limitations both

in the lower portion of the test as well as in the higher portion of the test when using a 20-

pound weight in order to perform this test. He had difficulty standing when he performed

the test, shifting his body weight to his left leg reporting pain in his right knee, he had

difficulty bending.

The last test was a test of his ability to lift and carry weights. He was given two

parts, one to lift and carry a ten-pound weight and then a 20-pound weight, and he did

that one-and-a-half times slower than that of an able-bodied person. He reported

experiencing right knee pain on the heavier weight and he also exhibited and favored his

right leg when he walked to perform this test.

Q. Did you reach any vocational conclusions based upon your evaluation?

A. Yes.

Q. Did you formulate these opinions within a reasonable degree of certainty

under your profession as a rehabilitation counselor and employability expert regarding

Mr. Seaman employability and earning capacity?

A. Yes. Based on the evaluation of Mr. Seaman he had limitations in his ability

to stand, walk, bend, kneel, lift and carry, some limitations in his dexterity and he

demonstrated reduced physical stamina.

It was my opinion, that he could not perform his past relevant work as an ordinary

seaman, and that his pre-injury earning capacity is best represented by the median

earnings of males with a high school education which is $28,944 per year stated in 1996

dollars according to the United States Government Publications; it was my opinion that

he could not perform any medium, heavy or very heavy work existing in the local or

national economy and sustained full time regular work on a competitive basis.

In fact, he was precluded from performing 40 percent of the jobs in a national

labor market.

And it's my opinion that he could perform work that involves sedentary and light

physical demands which make up approximately 60 percent of the jobs in the economy,

but, he's precluded from performing work involving medium, heavy and very heavy type

of work which is the type of work that he has done in the past. So this represents his

limitation and access to the labor market which will make it more difficult for him to get

a job as well as more difficult for him to maintain a particular job.

Q. In light of those functional limitations, you said it will affect his job potential.

How about his earnings potential?

A. It may affect his earnings potential depending on what types of jobs he would

be interested in performing that would require these types of physical demands.

Q. Do you have further opinions with respect to Mr. Seaman?

A. It's my opinion that as a vocational expert on the four-point scale of disability-

- and I have a document from the Department of Health and Human Services where

there's a continuum of disability ranging from non-disabled all the way to people that are

severely disabled. Using this continuum, it was my opinion, based on my evaluation that

Mr. Seaman fit into the occupationally disabled category which is defined as the ability to

work regularly but not at the same type of work as before the onset of his disability, and

that's the part of the definition that would fit into his background. He just could not do a

wide range of occupations that exist in the economy. He's limited to the type of work he

can perform, so he fits into the definition status "occupationally disabled," and that

definition will result in a 20 percent loss of earning capacity over his work life. It's my

opinion he sustained a significant diminution of earning capacity over his work life due to

his impairment of about $5,780 per year, and this would go throughout his work life per

year to age 65 or 70.

The loss of earning capacity based on my evaluation of him placing him in the

occupationally disabled category where we see we have approximately a 5,000-plus loss

of earning capacity with the bar graph indicating that his pre-injury earning capacity

would be 40,000 and his post injury earning injury capacity would be 35,156. And these

are dollar amounts, average dollar amounts throughout his entire work life which means

that I'm not saying that he would earn 35,156 now, but if we looked at his entire earning

stream from now into the future if he had not been hurt, it would average to this particular

figure. And now that he's been hurt, would average to that particular figure, resulting in a

loss of about $5,000.

Q. Is he a candidate for any other further rehabilitation services?

A. Yes, by some governmental or private agency. At a cost of 10,000 to 15,000

dollars.

CROSS EXAMINATION OF DEFENDANT’S EXPERTS

In order to conduct a successful cross-examination of the opposition’s expert, it

involves careful preparation using the relevant books, treatises, articles, regulations and

standards. The expert witness holds the distinct advantage. He has the years of

specialized education and experience, of being more knowledgeable in the field of study

and has a previous bank of knowledge unmatched by the examining attorney. Further,

the expert has access to much more material than the lawyer to support and shore up an

opinion.

Collect prior depositions and trial testimony of the expert, and pay particular

attention to similar cases. If an expert always works for defendant and never finds any

negligence, that would support bias. Read all publications written by the witness to see if

there is a basis for which to impeach. Use of your expert in preparing cross-examination

is imperative. The expert can help form strategy regarding what to ask and how far to go.

Depose the opposition’s expert prior to trial. Although you will need to pay the

expert for time expended in being deposed, it is money well spent. You will learn every

theory in advance and prepare your own expert to defeat it if possible.

For the cross-examination to be most effective, the jury must know where the

attorney is going and how he is going to get there. Make sure the questioning is

interesting and informative to the jury. It should be arranged to have a beginning, middle

and end. Tell a story and arrange the testimony so that it will proceed in an orderly

fashion. At trial use leading questions that should be answered with a yes or no. Do not

let the expert explain the why. Use the deposition you took to rein the witness in and to

present any inconsistencies. Advance deposition testimony will enhance the lawyer’s

ability to control the witness. Seek agreement from the witness in preliminaries to

support certain principles supportive of your case on the subject matter.

Question the witness on what facts the witness used in formulating opinions. If

the facts are not supported by the evidence, pounce on the witness. If there are issues that

are outside of the witness’s expertise, but are important to establishing liability highlight

the lack of experience in your cross-examination. All marine experts are not experienced

in all aspects. Generally they are divided between pleasure boats and commercial

vessels. Even more specialization results from bulk carriers, tankers and other classes of

commercial vessels. Try to establish any inexperience with respect to the vessel at issue

in your case. Vessels also vary greatly in their power plants, so if the accident involves

some aspect of the vessel’s machinery highlight any lack of experience in the witness’

background.

Plan to end on a high note. You must try and point out some inconsistency that

cannot be rehabilitated. The key to tripping the opposition’s expert is preparation.

Effective cross-examination of the witness can present an opportunity to achieve success

in the presentation of a case in which the jury will impose liability.

DAMAGES

To maximize a damage award by the jury, counsel needs detailed figures as to

what plaintiff has suffered as a result of the overwork and fatigue. First, explain to the

jury that filing this claim constitutes the only remedy that plaintiff has for any injuries

sustained during the course of his employment as a merchant mariner. There is no

corresponding workers’ compensation scheme. Plaintiff must file suit in order to recover.

Lay out the negligent acts and supporting testimony of the plaintiff, the witnesses and

finally those points raised from an effective cross-examination. Detail for the jury

plaintiff’s age at the time of his injury. Emphasize the state of his health at that time if it

was good or excellent. Distinguish any preexisting medical conditions and why such

conditions should not bar plaintiff’s recovery.

Describe to the jury the medical expert’s testimony supporting plaintiff’s

disability. Highlight the testing and medical conclusions to reinforce to the jury about the

disability. Relate these injuries to the fact that plaintiff can no longer be employed as a

merchant mariner. An important part of every person’s life is to be gainfully employed

and as a result of not being able to return to work, plaintiff has been stripped of his self-

esteem because he is no longer a part of a working, functioning society.

Describe to the jury plaintiff’s lost wages. The damage award will not be subject

to income taxes. In <Norfolk vs. Liepelt 44 U.S. 490>, the Supreme Court held that the

trial court erred in excluding evidence of the income effect on a FELA plaintiff’s future

earnings in refusing to instruct the jury as to the non-taxability of the damage award.

Although Liepelt arose under the FELA, its principles apply to cases arising under the

Jones Act and federal maritime law. Since any award made for lost wages is to be made

without regard for taxes, it is useful to provide the jury with the marginal rate of taxes on

the level of income that plaintiff was earning for three years prior to his injury. Compare

the marginal tax rate to other household deductions from plaintiff’s tax returns. It will

likely reduce plaintiff’s tax obligation. To be fair and not overestimate plaintiff’s

earnings, deductions must be made for the funds spent in order to work, any

unreimbursed travel, work clothes, and tools and equipment used in plaintiff’s livelihood.

As to plaintiff’s future earning capacity, detail what he would have earned but for

his disabling injuries. The union contracts that so many merchant mariners operate under

are useful documents to detail customary cost of living and pay rate increases. By

extrapolating these increases over the earning capacity of plaintiff, it should be an easy

calculation on the future lost earning capacity.

Fringe benefits are a tougher issue, and case law varies wildly from 12% to 25%

of an individual’s pay as constituting such benefits. <Treadway v. Societe Louis-Dreyfus

894 F.2d 161> <Hernandez v. Ragaan, 841 F.2d 582> Again, if plaintiff is a union

worker, the amount paid into vacation and welfare plans is specifically detailed in the

contract and can provide a sound basis for a loss of fringe benefit calculation. Finally,

plaintiff must reduce the lost earning capacity to present value, which provides the final

calculation for the jury. In utilizing the years remaining for the working life of an

individual of a certain age, race, sex and whether they are currently active in the labor

force, counsel should consult Work Life Estimates: Effects of Race and Education from

the U.S. Department, Bureau of Labor Statistics. The tables detail the present age of a

claimant, life expectancy and calculate the active years remaining in the labor force.

There are even more specific statistics based on race, education and whether the person is

currently employed. Although the data tends to support the defendant because it does not

track with an age 65 to70 retirement goal, it is statistically more accurate and shows

plaintiff is honest and is merely seeking a just award. Defendant would lack the

ammunition to attack if plaintiff uses the work life tables and has not offered testimony

that he would have worked a shorter time period to retirement than the average person

with his demographics.

The difficult measure of damages are pain and suffering. Case law provides little

guidance, it is generally left up to the fact finder to be calculated using a variety of

methods. It is important to suggest various ways of measuring the loss of one’s

livelihood, self-esteem and value to himself, his family and society. Measuring pain and

suffering and presenting the argument to the jury rises to an art form. The pain and

suffering argument has the biggest element of the unknown to it. The mental and

emotional aspects must not be over looked, and if serious enough a separate psychiatric

evaluation with supporting evidence should be presented at trial. A chart depicting the

measure of damages in a mathematical calculation can be effective for the jury. A well-

illustrated demonstrative exhibit used during closing will assist the jury in focusing on

the bottom line figures.

MITIGATION OF DAMAGES

Defendant will attempt to introduce a mitigation of damage instruction, which

will state: “a person who claims damages resulting from the wrongful act of another has

the duty under the law to use reasonable diligence to mitigate. If you find defendant is

liable and plaintiff has suffered damage, the plaintiff may not recover for any item of

damage for which he could have avoided through reasonable effort. If you find by a

preponderance of the evidence that plaintiff unreasonably failed to take advance of an

opportunity to lessen his damages you should deny him recovery for those damages for

which he could have avoided had he taken advantage of the opportunity. An injured

plaintiff may not sit idly by when presented with an opportunity to reduce his damages.

However, he is not required to exercise unreasonable effort in mitigating the damages.

You are the sole judge of whether plaintiff acted reasonably in avoiding or minimizing

his damage.”

Examination of the case law regarding mitigation <Jones v. Consolidated Rail

800 F.2d 590> found reversible error in the failure of the trial court to give a proper

mitigation jury instruction. Jones was an FELA case in which the court cited both

contract and tort cases for the general proposition that while a plaintiff has the burden of

proving his damages and has a duty to mitigate such damages, the burden of proving that

the plaintiff failed to mitigate is on the defendant <800 F.2d 593>. In Jones, the trial

court failed to inform the jury that defendant had the burden of proving the plaintiff’s

alleged failure to mitigate and the Sixth Circuit found that such failure may have affected

the damage award. The court also indicated that mitigation applied both to past wage

loss and future wage earning capacity.

As a warning to defendant, the issue of mitigation of damages should be set forth

as an affirmative defense in defendant’s answer. In<Sayre v. Musicland Group Inc., 850

F.2d 350> several cases were cited which indicated that a catchall affirmative defense can

include a failure to mitigate. However, a few courts have held to the contrary and

concluded that failure to mitigate is a specific affirmative defense and failure to plead it

will result in waiver of the defense. <850 F.2d at 354>. The wary practitioner should

specifically add it as an affirmative defense.

For cases on mitigation of damages on past wages. See <Kratzer vs. Capital

Marine Supply, 645 F.2d 477; Davis vs. Hill Engineering, 549 F.2d 314.>

Plaintiff’s counsel has a duty to prove loss of future wages with reasonable

certainty. In <Katz vs. Brown, 645 S.W. 2d 658>, the appellate court upheld a trial

court’s refusal to instruct on the issue of the loss of future wages due to plaintiff’s failure

to prove such losses with reasonable certainty. In <Louis vs. Pearson, 556 S.W. 2d 661>,

the court upheld a trial court’s refusal to instruct on loss of wages and found that the

claim for loss of time or earnings must be supported by the evidence and can be allowed

only in such amount as is supported. A party asserting such a claim must establish with a

reasonable probability that his injury brought about the loss and must afford a basis for a

reasonable estimate of such loss. <556 S.W. 2d 663>

PERMANENT AND TOTAL DISABILITY DAMAGES

If plaintiff is making claim for permanent disability, proof by the preponderance

of the evidence that plaintiff’s injuries are reasonably expected to be permanent is the

standard to be entitled to damages. A permanent disability is an inability to perform any

of the duties of any occupation in which plaintiff might ordinarily be capable of

performing. Speculation or conjecture that plaintiff ‘s injuries are permanent will not be

enough. <Dyer vs. United States, 551 F.Supp.1266>. The admiralty test for total

disability is whether the person can reasonably be expected to find employment in his

injured condition. If plaintiff can by reasonable diligence find gainful employment given

his physical condition, he is not deemed to be totally disabled. <Burden vs. Evansville

Materials, 840 F.2d 348>.

WORK LIFE ESTIMATE

In <Madore v. Ingram 732 F.2d 475>, both parties experts testified to a work life

expectancy based on those rates compiled by the United States Department of Labor.

Despite the fact that there was no evidence tending to show plaintiff’s work life

expectancy was different from the demographic average, the court based its award of

future wages on a work life expectancy higher than those presented by the experts. The

Court of Appeals presumed that the reason for this was so that plaintiff would reach the

age of 65 at that point. The Court of Appeals ruled that the trial court erred in basing its

award on the higher work life expectancy because even if the retirement age could be

anticipated to be age 65, it is far from certain, even in the absence of injury, that plaintiff

would have continued to work until that time. He might have as some workers do, retire

early. He may have become disabled from some illness or other disaster. Plaintiff may

have died before then. The phrase work life expectancy literally reflects the meaning that

it is the average number of years that a person of a certain age will both work and live.

The average is not conclusive, it may be shown by evidence that a particular person by

virtue of his health or occupation is likely to live and work a longer or shorter period than

the average. Absent any such evidence, computations should be based on the

demographic average. Such is a lesson to plaintiff’s lawyers. Present evidence of the

healthy life factors that support your plaintiff working through or beyond a normal

retirement age.

PRESENT VALUE CALCULATION

Awards of future loss earnings in federal actions should be reduced to present

value. <J & L Steel vs. Pfeifer, 462 U. S. 523>. As a matter of federal law the refusal to

receive evidence of the present value of future loss wages or the failure to give a

requested instruction on present value is error. <St. Louis Railroad vs. Dickerson, 470

U.S. 409>. In <Howard vs. Chesapeake Railroad 812 F.2d 285>, the court stated that to

allow a jury to take the prospect of future inflationary wage increases into account

without clear guidance on the need to reduce future earnings to present value would be

grossly unfair to the defendant. Obviously, a pitfall to avoid a potential appeal upon.

If the court tries to give an instruction regarding inflation, as it would relate to

future lost earnings, a corresponding instruction regarding present value should be given.

The jury should not speculate as to the future rate of inflation if they cannot determine

that the future rate of inflation is any different from the present rate on a return of a

reasonable and safe investment. The jury should be able to consider the two factors –

inflation and present value and whether they offset each other and therefore neither

should be considered. <Howard 812 F.2d at 287>

PREJUDGMENT INTEREST

Plaintiff should propose a jury instruction on the issue of prejudgment interest.

However, plaintiff may only obtain prejudgment interest for unseaworthiness claims

brought under the general maritime law. <Petersen vs. Chesapeake Railroad, 784 F.2d

732>. It is well established that prejudgment interest may not be awarded under a Jones

Act claim that is tried to a jury. When a claim is presented under both theories, courts

found that unless the jury apportions the damages between the Jones Act and

unseaworthiness claim, plaintiff will not be entitled to any prejudgment interest. If the

damages are apportioned, plaintiff can receive prejudgment interest on the

unseaworthiness award. There must be some evidentiary proof for separating the

damages caused by unseaworthiness and Jones Act negligence, so the jury can be asked

to distinguish between the two. If there is an alleged single harm from alleged causes

identical under both negligence and unseaworthiness, there is no basis for apportioning

damages between the two theories of recovery and consequently plaintiff is not entitled to

prejudgment interest. Furthermore, the jury may not award prejudgment interest on any

future damages. <Martin vs. Walk 749 F.2d 209>.

TRIAL MOTIONS AND OBJECTIONS

Various issues arise at trial that require a quick and well thought out response by

plaintiff’s counsel. One example is the surprise testimony from an expert witness. A

party may through interrogatories require the opposition to identify all experts, state the

subject matter upon which they are expected to testify, and state the substance and facts

of the opinions to which the experts are expected to testify and a summary of the grounds

for each opinion. If this is in discovery requests and has not been seasonally

supplemented make a timely objection to the court and seek exclusion of the evidence. If

the court denies it, you will have preserved your objection for any possible appeal.

If a defendant has objected to evidence offered by plaintiff and the objection has

been sustained by the court, inquiring counsel should seek a side bar conference and state

on the record the proposed evidence in order to preserve any error in excluding the

evidence. Offers of proof must be done on the specific question at issue and should be

made outside the hearing of the jury. Evidence Rule 103(c). Try to convince the court to

hear the proffered testimony outside the jury’s presence by seeking a special voir dire

hearing. Detail the proferred evidence and its relevance to the issues. The more specific,

the better, it will preserve the proof for the reviewing appellate court.

During cross examination, opposing counsel is not permitted to make an offer of

proof as to the testimony since it is presumed that counsel will not know for sure what the

witness would have said if permitted. Evidence Rule 103(A)(2) expressly denies the

obligation to make a proffer during cross-examination. It is felt that the reviewing court

will look at such evidence as an unreasonable limitation on the right to cross-examine

rather than the exclusion of evidence that is unknown in origin.

At trial, often issues of collateral source benefits will arise. Each particular

jurisdiction has its own rules, but counsel can, in appropriate circumstances, pursuant to

Federal Rule of Evidence 403 move for an order excluding any evidence of income that

plaintiff derives from collateral sources including social security and pension benefits.

Federal Rule of Evidence 403 generally excludes evidence on grounds of

prejudice, confusion or that which would constitute a waste of time. The courts have

excluded reference to the receipt of insurance benefits, finding that the value of the

evidence that is relevant is substantially outweighed by the danger of unfair prejudice.

<Perry v. Metro North, 716 F.Supp. 61>; <Brady v. National Railroad, 714 F.Supp 601>.

In Jones Act cases the collateral source rule applies. <Tipton v. Seconay, 375

U.S. 34>; <Bourque v. Diamond M, 623 F.2d 351>. The background behind the

collateral source rule is that it denies the tortfeasor reduction of its liability by any

amounts received from a source independent of the tortfeasor. <Phillips v. Western Co.,

953 F.2d 923>. The court stated that the substantive rule of no reduction carries with it

an evidentiary rule requiring exclusion of evidence of any collateral benefits. The court

held that collateral source payments would prejudice the jury against finding the

defendant negligent by making the jury think the plaintiff has been adequately

compensated for his loss. More importantly since the collateral source rule bars any set

off from the tortfeasor’s damages, evidence of collateral benefits have no relevance in the

lawsuit and should be barred under Federal Rule of Evidence 403. Analyze the

independent sources of payment to plaintiff in order to present a successful collateral

source benefit argument to the judge.

PLAINTIFF’S CLOSING ARGUMENT

Plaintiff must detail the proofs in an effective manner to support his plea for

damages, the following is a sample abbreviated closing argument on behalf of plaintiff.

“Good afternoon ladies and gentlemen. This is the conclusion of the case for a

man that has been severely injured. Plaintiff filed his claim under the Jones Act and the

work hour limitation statute. This is the only remedy he has for the injuries he sustained

during the course of his employment as a merchant mariner. What does the evidence

illustrate? It demonstrates that Mr. Seaman sustained a serious knee injury on July 19,

2000. His injury was due to the negligent acts of the master and his supervisor on the Str.

Lawsuit and for the acts of defendant’s office personnel in sentencing plaintiff to a

workweek that no normal human being could bear. The defendant claims they did

nothing wrong. There was no negligence and Mr. Seaman’s injury was a result of his

own inability to perform his job in a competent manner.

There is no question that prior to this accident on July 19, 2000, Mr. Seamen is a

career mariner proudly working each and every season. Never took off time for medical

circumstances or ever missed time from work for unnecessary non-employment related

issues.

Recall the testimony of seaman No. 1, who is still employed with defendant. He

witnessed plaintiff immediately after the accident. He testified that plaintiff was dazed,

shaken and was unable to walk in a normal manner. Recall the testimony of the master

and the first mate who themselves testified that they did not have enough manpower and

needed plaintiff to work these additional hours. Analyzing defendant actions under the

law and the facts of this case, there was a lack of good seamanship, a lack of sound

judgment and the captain failed in his entirety to care for the underlings in his charge.

Every witness called on in this case has said the same thing. Plaintiff worked

amazing hours, heroic hours, yet is getting to the end of his line and told the company so.

Plaintiff was still expected to dock the vessel walking along a moving vessel at a fast

pace in order to throw a line to the deckhand on the dock below. The defendant had a

major error in judgment attributed to the first mate, the captain, the defendant’s personnel

manager, which were all equally negligent. That negligence is required for you the jury

to find for the plaintiff under the Jones Act. The Jones Act states that whatever

negligence, no matter how small, that contributed to the injury of the plaintiff, mandates

that one must find for him. Plaintiff has no other remedy available to him under the law.

As you will recall the jury charge as the court read it, supports that the acts of

misjudgment would inflict Jones Act negligence upon defendant. The Master allowed

plaintiff to overwork although it was in violation of a federal statute limiting work hours

to eight per day with rest periods interlaced. He not only allowed, but mandated that

plaintiff work. He placed plaintiff as well as the remaining crew in peril by his

negligence acts.

At the time of the accident, plaintiff was exhausted. He was directed to engage in

a tricky maneuver of walking along a moving vessel attempting to throw a line to the

deckhand so it could be secured on the bollards. If he had missed his throw to the

deckhand, it may have placed the vessel into peril and caused it to collide it with the

dock. Who placed him in this position? It was the master, his supervisor and yes, even

the personnel manager. It was the master himself who made the decision to force

plaintiff to work this docking although he had worked the previous nineteen hours.

Nineteen hours is a job schedule few could even fathom.

Now the captain will not admit to it and maintains that plaintiff volunteered to

work these excessive hours. However, the captain’s testimony conflicts with the

personnel manager who repeatedly spoke with plaintiff and stated that he was attempting

to find additional crew to assist Plaintiff. If there was no problem and plaintiff was a

willing volunteer, why did these phone conversations take place?

You heard from plaintiff’s doctor that it was necessary to perform a patellectomy

and remove plaintiff’s entire kneecap. This was his treating orthopedic surgeon. His

surgeon testified that posttraumatic arthritis can develop as a result of an injury such as

this.

Defendant’s medical witness was hired for the sole purpose of prosecuting this

case. Defendant’s doctor found that although plaintiff did have a surgical removal of his

patella, he was fine, he had no limitations, he should not be completely disabled from

work. Defendant has forsaken plaintiff by stating they were not responsible and that even

if they were, plaintiff was not hurt all that badly.

Whoever you believe, the facts are that plaintiff is a man as a result of his injuries,

who could no longer work. He has been stripped of his self-esteem and is no longer a

part of a functioning working society. He is entitled to damages and you are the sole

determining fact finder and sole body that will determine what those damages are.

Plaintiff seeks damages for lost wages. Plaintiff testified that he would have

worked at least until 65 and possibly would have worked until 70 if his health were

otherwise good. One component of his damages is his loss of earning capacity. That is

his capacity to earn in the future what he could have but for his disabling injuries. He

now walks with an antalgic gait, a limp, he is crippled and he cannot work or perform any

job requiring him to be on his feet. As you recall hearing from the vocational

rehabilitation specialist, he valued these future lost wages at $162,000.00. Further,

according to defendant’s economist, in order to be fair this amount should be reduced to

present value. There has been a lot of talk about the tax rate. However, one must take

into consideration the deductions and other benefits that the taxpayer gains in order to

reduce his taxable wage. Based upon his last three years of tax returns, we submit to you

that plaintiff’s effective tax rate was 12%. As you will recall his award is not subject to

income taxes.

Plaintiff also lost fringe benefits in the range of 25%. As you will recall,

defendant’s economist during my questioning admitted that he had lost at least 25% of

his lost wages as fringe benefits if he was in fact unable to work. You have been given

the measure of damages for the lost wages and that is the mathematical portion of his

damages which we entrust to you the jury.

The difficult analysis is for pain and suffering. Cases really do not give us

guidance, the jury is the sole judge of what is sufficient to compensate for pain and

suffering.

We would all agree that if Mr. Seaman had fallen over the side of the vessel and

died, his life would easily be worth millions. You as a jury would not think that

unreasonable at all. But the body is more than the sum of its parts. If Mr. Seaman lost

the effective use of a limb, one might compensate him $2, $3, $4 million.

Plaintiff is essentially a man with one leg. His right knee barely functions and he

is unable to stand, run, jump, squat, skip, or do any of the things we normal human beings

can do. As a result of this severe injury to his leg, he has suffered mental anguish and

humiliation. He does not feel that he is the vibrant man he once was. You have heard the

testimony of him, his wife and his friends. So, if you can compensate for the loss of a life

in the millions, and if you compensate for the loss of a limb in a $3 to $4 million range,

consider a man that is essentially crippled, who cannot play golf, work at a job, dance, do

any of the things that a normal adult male can. One who has suffered as a result of this

crippling injury, great mental anguish. He had a great deal of pride being a merchant

seaman and that has more than a monetary value. I am going to suggest to you that fair

compensation for his pain and suffering is $2.5 million dollars. But only you can

determine what the value is as the fact finder.

Thank you for your attention during this trial.”

PLAINTIFF’S JURY INSTRUCTIONS

Personal injury actions by seamen are governed by the Jones Act and the general

maritime doctrine of “unseaworthiness.” The Jones Act made the Federal Employers

Liability Act (FELA) applicable to seamen, thus creating a negligence cause of action, in

which the standards of the FELA, by its terms and as interpreted, apply. Under the Jones

Act, common law proximate cause rules are relaxed: To result in liability, the employer’s

negligence only need have caused the injury in whole or part, a requirement the courts

have interpreted to mean to any degree, no matter how slight.

The seaman’s contributory negligence is not a bar to recovery, but only results in

a proportionate reduction of damages in Jones Act negligence actions; however, where

the injury resulted from violation of a safety statute, contributory negligence has no effect

on recovery. In a statutory work hour violation case an effective argument is to allege the

violation of statute designed to keep seamen safe.

A seaman’s claim based on unseaworthiness is independent of his Jones Act

negligence claim. Unseaworthiness, is generally defined as failure of the ship or its gear

or crew to be reasonably fit for its intended purpose, has been described as a form of

absolute liability because once unseaworthiness is established, the vessel is liable for

injuries which result, without regard to the vessel’s knowledge, opportunity to correct the

hazard or diligence. Contributory negligence is not a bar; rather, comparative negligence

applies, and assumption of risk is inapplicable. The negligence theory provides a greater

chance as a basis for recovery, especially under its less rigorous causation rules.

THE STATUTES

Plaintiff Mr. Seaman brings this action against the defendant under the Jones Act

and the work hour limit statute. {46 U.S.C.A. 8104} The Jones Act provides in

substance that every employer whose employees are members of the crew of a vessel in

navigation shall be liable in damages for injuries to its employees resulting in whole or in

part from the negligence of any of its officers, agents or employees or from any defect or

deficiency, due to its negligence, in the vessel, its crew or its equipment.

The work hour statute divides workers into three watches and provides that a

seaman in the deck department may not be required to work more than eight hours in one

day. {46 U.S.C.A. §8104(d)}1

1 <Wheatley v. Gladden, 660 F.2d 1024, 1027>

SEAMAN STATUS

You may find that the plaintiff was a seaman or a member of a crew – if you find

by a preponderance of the evidence:

First, that the plaintiff was working on or in connection with a vessel in

navigation;

Second, that plaintiff had a more or less permanent connection with the vessel or

performed a substantial part of his work on the vessel; and

Third, that the plaintiff’s job or duties contributed to the function or mission of

the vessel.2

2 <Petersen v. Chesapeake & Ohio Ry. Co., 784 F.2d 732>

EMPLOYEE

The second element requires that plaintiff be an employee of the defendant. The

definition of “employee” is fairly simple. It refers to the usual relationship of employer

and employee.3

3 <Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783>

NEGLIGENCE

The third element is whether the defendant or its officers, employees or agents

were negligent.

The fact that plaintiff was injured during his employment does not automatically

entitle him to recover from his employer. Plaintiff can only recover from the defendant if

negligence and the other elements I will describe are established by a preponderance of

the evidence.4

4 <Johnson v. Offshore Logistics 845 F2d 1347>

DUTY TO PROVIDE SAFE PLACE TO WORK

The Jones Act imposes on the defendant a duty to exercise reasonable care to

provide the plaintiff with reasonably safe conditions in which to work and reasonably

safe tools and equipment.5

5 <Nolan v. Greene, 383 F.2d 814>

CAUSATION

If you have found by a preponderance of the evidence that the plaintiff was a

member of the crew of a vessel, acting in the course of his employment, that the

defendant was plaintiff’s employer and that the defendant or its employees or agents was

negligent.

Did an injury to the plaintiff resulted in whole or part from the negligence of the

defendant or its employees or agents. In other words, did such negligence play any part,

even the slightest, in bringing about an injury to the plaintiff?

It is important to remember that there can be more than one cause of an injury.

The involvement of any other cause does not prevent a finding for the plaintiff, as long as

you find that the employer’s negligence played any part, no matter how slight, in causing

an injury to the plaintiff.6

6<Ferguson v. Moore., 352 U.S. 521>

DAMAGES – INTRODUCTION

Only if you find that the plaintiff has established seaman status, employee status,

negligence, and causation by a preponderance of the evidence are you to consider the

issue of damages.

DAMAGES – GENERALLY

The purpose of the Jones Act is to compensate an injured party for the damages

sustained as a result of another’s negligent conduct.

Your award must be fair and just.

It should neither be excessive nor inadequate; it should be reasonable.

Under the Jones Act, if plaintiff has sustained his burden of proof, he may recover

for:

1. Loss of earnings from the time of the accident to the present, and in the

future;

2. Pain, suffering and mental anguish, including the effect of his injury on

the normal pursuits and pleasures of life, experienced from the date of the accident to the

present; and

3. Pain, suffering and mental anguish, if any, as you may reasonably find he

is likely to endure in the future as a result of his injury.

4. Medical bills and out of pocket expenses.7

7 <Kokesh v. American, 747 F.2d 1092>

AWARD IS NOT TAXABLE

If you make any award of damages, such award is not subject to federal income

taxes and you should not consider such taxes in determining the amount of damages, if

any.8

8< Norfolk v. Liepelt, 444 U.S. 490>

THE WHISTLE BLOWER STATUTE

If you find that plaintiff was retaliated against for reporting safety violations to

the Coast Guard about the vessel leaking, you may find that pursuant to {46 USCA

§2114} that he was acting as a whistle blower under the statute.

<Gary v. James Gray Inc., 912 F.2 808>

46 USCA §8104

If you find by a preponderance of the evidence that plaintiff was fatigued

at the time of the accident and that defendant was aware that its vessels were manned

with fatigued crews, then such constitutes a reckless disregard of the attendant risk to

plaintiff. {46 U. S. C. A. §8104} Defendant is liable for failure to comply with {46 US

CA §8104}.

46 USCA §8104

If you find that the vessel must have had sufficient crew to maintain three

watches and failed to, you may impose liability upon defendant for the failure to maintain

the requisite three watches.

<Cook v. M/V Boudreaux 1994 U. S. Dist. LEXIS 9553>.

COMPARATIVE NEGLIGENCE

As in the Jones Act claim, the defendant alleges that plaintiff was contributorily

negligent and that plaintiff’s damages, if any, should be reduced to the extent that his

own negligence contributed to his injury. However, if you find a violation of the safety

statute meant to protect those who sail, you may not consider contributory negligence on

plaintiff’s part.9 <Kernan v. American Dredging, 335 U.S. 426>

9

POST VERDICT MOTIONS

In the event of an adverse judgment, one may motion the court for a judgment not

withstanding the verdict and/or a motion for new trial. The following is a sample motion

for JNOV and/or a motion for new trial.

MOTION FOR JNOV AND NEW TRIAL

Plaintiff moved this honorable court under Federal Rule Civil Procedure 50(A)

for a directed verdict at the close of all evidence. By way of background the jury

returned an adverse verdict on September 17, 2001, ruling for defendant on all counts.

Plaintiff now renews his motion for judgment not withstanding the verdict or in the

alternative motion for a new trial.

Federal Rule of Civil Procedure 50(B) governs a motion for judgment not

withstanding the verdict. It provides that whenever a motion for judgment as a matter of

law is made at the close of the evidence and is denied or for any reason is not granted, the

court is deemed to have submitted the action to the jury subject to a later determination of

the legal question raised by the motion. A motion for a new trial under Rule 59 may be

joined with the judgment notwithstanding the verdict. If the verdict was returned, the

court may in disposing of a renewed motion allow the judgment to stand or it may reopen

it and order a new trial or direct the entry of judgment as a matter of law. If no verdict

was returned the court may direct the judgment as a matter of law or may order a new

trial.

In<Anderson v. Liberty 477 U.S. 242>, the test the court must apply is whether

the evidence is such that without weighing the credibility of the witnesses or otherwise

considering the weight of the evidence there can be but one conclusion as to the verdict

that reasonable men could have reached. The evidence must be viewed in the light most

favorable to the party against whom the motion is made and that party must be given the

benefit of all reasonable inferences that may be drawn in its favor from the evidence.

<Douglas v. Eaton 956 F.2d 1339>.

In the instant case, plaintiff’s renewed motion for JNOV must be granted because

the evidence supported a finding on plaintiffs’ Jones Act negligence claim and claim filed

under {46 U.S.C.A. §8104}.

THE RECORD SUPPORTS A FINDING OF JONES ACT NEGLIGENCE

Plaintiff was seriously injured while docking the Str. Lawsuit. Plaintiff was

fatigued from overwork in violation of {46 U.S.C.A. §8104} due to defendant’s company

procedures, which forced him to work hours in excess of eight, for a period of nineteen

days prior to his accident. (Reference transcript pages for relevant testimony). This

testimony at trial supported a finding of negligence under the Jones Act {46 U.S.C.A.

§688}. This plaintiff prays that the court grant his motion for judgment notwithstanding

the verdict with respect to the Jones Act negligence.

In this case negligence was found as the failure to exercise care, which an

ordinary prudent person would use under the circumstances in discharging the duty one

owes to those who work on a vessel. <Clemens v. Choten, 496 F.Supp. 163>. Evidence

of the slightest negligence is enough to inflict Jones Act liability. <Johnson v. Offshore

845 F.2d 1347>.

The trial testimony established that the vessel was navigating Lake Michigan and

was due to dock at 0800 on July 19, 2000. The plaintiff was assisting the vessel in

docking and was throwing a line to a deckhand located on the dock below. As he was

walking with the line to throw it to the deckhand, he fell severely injuring his knee as a

result of extreme overwork and fatigue occasioned by defendant’s imposition of

unreasonable work hours upon him.

Plaintiff was forced to work hours grossly in excess of eight for a period of

nineteen days prior to the accident. Despite repeatedly talking to defendant’s personnel

manager, no additional help was provided for any period prior to plaintiff’s accident so

that he was within compliance of {46 U.S.C.A. §8104}. The vessel was not under any

safety or other emergency, which necessitated plaintiff working these incredible hours.

In the instant case, the first mate admitted that plaintiff did not have to work this

additional overtime. However, plaintiff continued to work and endured hours that were

not necessary, but were mandated by the actions of the master and his superiors. A

master owes his crew a paternalist duty to protect them. However, by comparison the

seamen’s duty to protect himself is slight. <Sphinx v. Chevron 507 F.2d 216>. The

master in being that individual in charge of all personnel below him violated the

paternalistic duty when he allowed plaintiff to work horrendous hours and yet undertake

a task as dangerous as docking the vessel. The master and defendant were negligent in

allowing plaintiff to work such horrendous hours. For these reasons, the court should

grant plaintiff’s motion for judgment not withstanding the verdict on the negligence

claim.

MOTION FOR NEW TRIAL

If the court grants plaintiff’s motion for judgment not withstanding the verdict, it

must nevertheless rule on plaintiff’s motion for new trial. Federal Rule Civil Procedure

50(c)(1). The alternative motion should be conditionally granted because the jury’s

defense verdict was against the manifest weight of the evidence. A new trial should be

granted when having given full respect to the jury’s findings, the judge looking at the

entire evidence, is left with a definite and firm conviction that a mistake has been

committed. As set forth above, the evidence presented at trial and taken as a whole

proves that negligence was committed by defendant and due to the strength of the

evidence, plaintiff’s motion for new trial in the alternative should be granted.

The end.