Lara v. Arctic King Ltd., C99-1756.

• Decision Date: 25 May 2001
• Docket Number: No. C99-1756.,C99-1756.
• Citation: 178 F.Supp.2d 1178
• Court: U.S. District Court — Western District of Washington
• Parties: Noe LARA, Plaintiff, v. ARCTIC KING LTD. d/b/a Arctic King Fisheries, and the F/V Arctic Trawler, her engines tackle, gear, apparel, furniture, and equipment, Defendants.

178 F.Supp.2d 1178

Noe LARA, Plaintiff, v. ARCTIC KING LTD. d/b/a Arctic King Fisheries, and the F/V Arctic Trawler, her engines tackle, gear, apparel, furniture, and equipment, Defendants.

No. C99-1756.

United States District Court, W.D. Washington, at Seattle.

May 25, 2001.

Georgia Trejo Locher, Seatac, WA, Eric C. de los Santos, Gerogis Trejo Locher, Seatac, WA, for plaintiff.

Marc E. Warner, Dennis Michael Moran, Legros, Buchanan & Paul, Seattle, WA, for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

McGOVERN, District Judge.

This matter was tried before the Court, without a jury, on April 9 through 11, 2001. Based upon the testimony and exhibits presented, and upon application of the relevant law, the Court makes the following findings and conclusions.

FINDINGS OF FACT

This is a suit for damages brought under the Merchant Marine Act of 1920, 46 U.S.C. § 688 (commonly referred to as the "Jones Act") and the general maritime law concept of "unseaworthiness" relating to personal injuries that plaintiff sustained while working aboard the defendant's vessel on December 17, 1997. Plaintiff also brings claims related to the traditional seaman's benefits of maintenance, cure and unearned wages.

The initial prerequisite for recovery on any of plaintiff's claims in this matter is that plaintiff was a "seaman" at the time of his accident.

Plaintiff is a 36 year old gentleman who has had a number of jobs involving physical labor. Some of those jobs have been for various fishing companies, some of which involved working ashore and others involved plaintiff serving as a member of vessels' crews when the vessels operated at sea.

In August 1997, plaintiff applied for a job with, and was hired by, the defendant. Plaintiff had never previously worked for the defendant. He testified that he applied for a position as a processor aboard one of defendant's vessels, and was apparently given or shown a document describing the job of a processor, although plaintiff never signed on the designated signature line on that document. Plaintiff testified he had no fixed position when hired by the defendant. Pauline Chihara who was in charge of personnel for the defendant at that time and who interviewed and hired plaintiff, testified she advised plaintiff that he was employed only to perform work aboard defendant's vessel, ARCTIC TRAWLER, while it was in a shipyard in Lake Union. Lake Union is located on the outskirts of downtown Seattle, with access to Puget Sound by way of a canal and a set of locks.

The ARCTIC TRAWLER had arrived at the shipyard for repair and maintenance work in May of 1997, three months before plaintiff was hired. The vessel had been fishing in Russian waters for the prior two years, without much in the way of repairs and maintenance during that time, and was in need of substantial removal of rust and repainting. In addition, the defendant had decided to sell the vessel, and much of the work being performed at the shipyard was to place it in a saleable condition.

Plaintiff worked as a day laborer aboard the vessel from early August 1997 until January 2, 1998. His work was performed exclusively aboard the vessel. Throughout that entire time, the vessel was afloat in navigable water of the United States, but was tied to a pier at the shipyard. On one or more occasions, the vessel was shifted along the pier, or between piers at the shipyard, but this work was performed by shipyard employees. Much of plaintiff's work consisted of scrapping or chipping rust from portions of the vessel, and then priming and painting those areas. He also on occasion operated a vessel crane to move nets and other materials on board.

At no time while plaintiff was employed by the defendant did the vessel leave the shipyard, or engage in fishing or processing activities. Plaintiff testified he never sailed with the vessel, never performed any processing work, and described his job as entailing labor-type work.

Plaintiff signed no crew contract or any other type of employment agreement with the defendant. He punched in and out each work day on a time clock and was paid on an hourly basis. This contrasts with the manner in which crew members of the vessel were paid by way of crew shares — that is, a percentage of the value of fish caught and processed.

Plaintiff slept aboard the vessel, at least during week nights. However, this was as an accommodation to him by the defendant, since plaintiff's home was in Central Washington, several hours travel time from Seattle. Plaintiff was also allowed to eat meals aboard the vessel, but unlike the situation with crewmembers, plaintiff had to purchase and prepare his own food.

During the entire time plaintiff was working aboard the vessel, no man overboard, fire or other safety drills required by the U.S. Coast Guard to be performed by a vessel's crew were conducted.

Throughout the time the vessel was moored at the Lake Union shipyard, the defendant maintained insurance on the vessel under a "port risk" status, as opposed to the degree of coverage in place when the vessel was operating.

During the first two months of plaintiff's employment, defendant had a contract to sell the vessel to another company. There had been discussions between the defendant and that prospective buyer about defendant possibly operating the vessel for the other company after the sale was completed, and taking the vessel out fishing in January 1998. If this had occurred, the defendant would have hired crewmembers to man the vessel. However, there was no agreement or even any firm understanding that the defendant would do so.

Plaintiff testified that before he actually started working for the defendant aboard the vessel, he had been told the vessel was being readied to go fishing in January 1998; and it seems likely that he was hopeful of securing a crew position if and when that occurred, based upon showing good performance of the repair and maintenance work.

In early October of 1997, the prospective purchaser backed out of the vessel purchase. Mr. Rick Rees, the defendant's President at that time, testified that from that point on, defendant's goal was to put the vessel into a presentable condition and to sell it, without retaining any control or involvement.

Mr. Rees testified that shortly after the sale of the vessel fell through, he held a meeting aboard the vessel to so advise all the workers, and to advise that they should expect to be laid-off by the end of that year, 1997. This account was substantiated by the deposition — perpetuated testimony of Roy Wittke who was one of plaintiff's supervisors.

Plaintiff's actions from that point on clearly indicate he was aware his involvement with the vessel was short-lived and that he was not expecting to sail as a crewmember. He applied for crew positions with two other fishing companies in November of 1997 about a month before his accident. He actually was offered and accepted a crew position with one of those companies, but that position never materialized due to mechanical problems experienced by that other company's vessel.

On December 17, 1997, while removing survival suits from a metal container on deck, the metal lid of that container fell and struck plaintiff on the head. There was conflicting evidence as to exactly how the accident occurred, but an eye-witness, plaintiff's cousin, testified that a gust of wind and to a lesser extent, the resulting motion of the vessel caused the container lid to fall. The insurance adjuster who investigated the claim testified that he has checked the weather records for that day and found there was wind of up to 40 mph.

A short time after the accident, plaintiff walked off the vessel and was driven to a medical clinic for an examination. He continued working aboard the vessel for two more weeks, until January 2, 1998 when he and the other laborers were laid off. The vessel remained tied to the shipyard pier for another eleven months until it was sold to another company in November 1998. The defendant did not operate or crew the vessel during that period, and did not retain any involvement with the vessel after its sale.

CONCLUSIONS OF LAW

The U.S. Supreme Court has held that a "seaman" is one whose employment furthers the purpose of the vessel or who performs the ship's work. McDermott International v. Wilander, 498 U.S. 337, 346 and 355, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991). However, in the very same case, the Court made it clear that not every person who performs work aboard a vessel or furthers a vessel's purpose is a "seaman".

.... with the passage of the LHWCA [the Longshore and Harbor Worker's Compensation Act, 33 U.S.C. § 801 et. seq.] Congress established a clear distinction between land-based and sea-based maritime workers ......