$1,000,000 – Two Deaths On High Seas

Award Amount: $1,000,000

Location: Boston, Massachusetts

Admiralty

Jones Act – 2 Deaths On High Seas

Amount of settlement: Over $1 Million, including interest

Injuries alleged: Death

Name of case: Plaintiff v. Cape Fear, Inc.; Plaintiff v. Cape Fear, Inc.

Court/case#: U.S. District Court, Nos. 99-CV-10960-GAO, 99-CV-10944-GAO

Tried before judge or jury: Jury

Name of judge: George A. O’Toole Jr.

Special damages: Allen: $600,000 (conscious pain and suffering); Martin: $200,000 (conscious pain and suffering)

Award details: $848,343 total; (Allen: $640,343; Martin: $208,000; more than $1 million including interest)

Date: March 10, 2004

Most helpful experts: Dr. Alan Steinman, drowning expert, Seattle

Attorney for plaintiff: Carolyn M. Latti and David F. Anderson, Latti & Anderson LLP, Boston

Attorney for defendant: Withheld

[NOTE: The following information was provided by the counsel for the winning party and represents the attorney’s characterization of the case.]

On the evening of Jan. 8, 1999, the defendant-owned fishing vessel completed fishing operations and started to steam home fully loaded with clams. The captain and crew claimed that during the steam back to New Bedford, they noticed that the waves were no longer shedding off the stern but in fact were washing further up the work deck.

As the stern of the vessel continued to sink evenly into the water, the crew donned their survival suits in preparation for abandoning ship. Soon thereafter the stern became submerged and the vessel rolled over.

All five crew members claimed they were then in the water fighting for survival. The captain, mate and another crew member survived after being in the water for 20 to 30 minutes. Two crew members, the plaintiff’s descendants, did not survive.

During the time in the water, both the captain and the mate heard plaintiff’s decedent #1 screaming for help and for God to save him. He allegedly did not have his survival suit on all the way and it was estimated that he was alive in the water for approximately 15 to 20 minutes. His body was never found.

Plaintiff’s decedent #2 was last seen on the vessel putting on his survival suit. No one claimed to have heard him in the water. On Jan. 9, 1999, his body was washed ashore. The survival suit was not completely zipped, and upon examination the zipper did not work. The cause of his death was found to be hypothermia and drowning.

The plaintiffs’ expert opined that decedent #2 was alive in the water for approximately 30 to 60 minutes, 120 minutes maximum. The defendant claimed decedent #2 lost consciousness upon water and died immediately thereafter, within two to four minutes.

To describe the process of cold-water immersion and drowning, testimony from the survivors was elicited describing their ordeal. The leading authority on drowning, hypothermia and cold-water immersion testified as to what occurs during cold-water immersion and drowning.

In a previous related action, another judge found the defendant-owned fishing vessel unseaworthy. This finding was upheld by the 1st U.S. Circuit Court of Appeals (Cape Fear v. Martin, 312 F.3d 496 (1st Cir. 2002)).

The issue in this trial was the damages sustained by the estates of plaintiff’s decedents #1 and 2. Under maritime law, with regard to the estate of plaintiff’s decedent #1, damages consisted solely of conscious pain and suffering and loss of support to his son. For the estate of plaintiff’s decedent #2, the damages consisted solely of conscious pain and suffering and funeral expenses.

Even though there was a prior finding of unseaworthiness, due to the fact that the defendant alleged contributory negligence on part of both plaintiff’s decedents, the plaintiffs introduced evidence of negligence and additional claims of unseaworthiness in order for the jury to compare the fault, if any, of the plaintiffs’ decedents to the defendant.

The plaintiffs’ claims of negligence and unseaworthiness were that the defendant-owned fishing vessel was modified, equipped and operated such that she had no margin of safety. The jury found both negligence and unseaworthiness. Additionally, the jury found that the defendant failed to comply with U.S. Coast Guard regulations regarding proper upkeep of the survival suits and failed to perform monthly safety drills of donning the survival suits.

As a result of the violation, under a U.S. Supreme Court case, the burden of proof shifted to the defendant to prove that the violations could not possibly have caused the death of the plaintiffs’ decedents. The jury found that the defendant failed to prove that the statutory violations could not have been a cause of the deaths. Since there were statutory violations, by operation of law, the jury’s finding of 10 percent contributory negligence was precluded.

The jury returned a verdict for the estate of plaintiff’s descendant #1 for $600,000 for conscious pain and suffering, $40,343 for loss of support and 6 percent pre-judgement interest for the award. The jury returned a verdict for the estate of plaintiff’s decedent #2 for $200,000 for conscious pain and suffering, $8,000 for funeral expenses and 6 percent pre-judgment interest. The total award with interest is more than $1 million.

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