Abbott Clay & Reed

Archive for April, 2009|Monthly archive page

Piracy Today: A Crime without Punishment?

In Uncategorized on April 26, 2009 at 5:17 AM

Though our world has evolved remarkably since the days of swashbuckling sea captains, we still see piracy occurring. And, although we are in the age of technology, the piracy that we are referring to has nothing to do with copyright violation. Back are the days of pirate ships. Back are the days of feeling as if one must constantly scan the waters around them to be prepared and more aware of an impending attack.

Yes, today, pirates still exist. Quite honestly, they probably never ceased to exist; we just didn’t hear that much about them because pirate attacks were so rare. However, within the past year, more than 80 boats have fallen victim to pirates. In fact, it is estimated that pirates have at least 20 boats and somewhere in the vicinity of 300 hostages currently in their possession. The attacks are only increasing in number and, unfortunately, it seems as if there is little that can be done about the situation.

The majority of these pirates are from Somalia, a lawless country since 1991. Many of the attacks occur within the waters of the Gulf of Aden, a popular through route just off the coast of Somalia. The Somalian pirates believe that they have good reason to commit these acts, which, in any other country, would be considered criminal. Their pirating activities began sometime in the early 1990’s, after the fall of the Somalian Government. It is believed to have started when fishing vessels from other countries began illegally fishing the waters off the coast of Somalia. In an attempt to get back some of the income that was lost when these vessels depleted the Somalian waters of fish and lobster, Somalian fisherman began hijacking foreign vessels and holding the boats and crew members for ransom. Because the ransom is almost always paid, these pirates continue their attacks.

Unfortunately, though mounting concern of many countries exists and measures are being put into place to curb these instances, little has changed in the way of prosecution. NATO currently has no policy for detainment of these individuals. In short, many of the countries affected by this pirating are saddled with the burden of prosecution. And, many times, do not even have that opportunity available to them.

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The Origination of the Jones Act

In Jones Act Law on April 22, 2009 at 9:55 AM

Many of our nation’s individuals make their living working on the boats and ships that travel our oceans and waterways. The unfortunate fact is that so many of these individuals are not aware of the laws that have been enacted to protect them. The Jones Act was established to protect maritime workers when they are injured or killed on the job if negligence can be established.

The Jones Act was signed into federal law in 1920 because of the growing negligence of the employers of the time. The law enables maritime workers who are hurt while completing their duties to sue their employers to be properly compensated for their injury. However, the Act can only be enforceable if the injury was caused due to the negligence of an employer to properly maintain the vessel or if the injury could have been prevented if the captain or another crew member had not been negligent. However, the truth is that many individuals are injured for exactly those reasons.

Prior to the Jones Act being established, seamen had no chance of suing their employer and winning. The main reason for this was because, at that time, they had to prove negligence of the owner of the ship and not the negligence of another crew member or shipmaster. When the law was examined more closely, specifically between the years of 1903-1918 when the law was challenged, it was decided by Congress that something had to be done to change what was already in place.

Although some minor adjustments and more clearly defining insertions have been made since this time, the Jones Act that was set into law in 1920 is the one that still governs the rights of injured seamen today. If you are a maritime employee, you should become familiar with the Jones Act. This law could quite possibly provide for you and your family if you should ever become injured while performing your maritime duties.

Rescued American Ship Captain Arrives in Kenya

In Hijacking, Hostage, Jones Act Law, Pirates on April 16, 2009 at 9:57 AM

The Voice of America reports on Richard Phillip arriving in Kenya after being rescued by the U.S. Navy. Three Navy sharpshooters shot three of his captures just before his rescue.

As the Pirate attacks escalate in the region the Jones Act and it’s applicable laws we no doubt ably again be reviewed by our Justice System. It is interesting that these laws of the early 20th Century are still as necessary today for acts of Piracy as they certainly must have been during their penning.

We are curious to see if the Jones Act in it’s current form will be able to properly defend the rights of these seamen in international territories working for US based companies. It is our opinion that not only will it hold it’s own but in fact with further strengthen legal ramifications across all aspects of the shipping and maritime industries.

U.S. Ship Hijacked – Jones Act Implications

In Hijacking, Hostage, Jones Act Law, Pirates on April 12, 2009 at 3:38 PM

 

The U.S. Flagged Cargo ship Maersk Alabama was attacked Wednesday, April 8, 2009 by Somali Pirates. The crew of the Maersk Alabama was successful in derailing the take-over attempts, and the ship remains in control of the crew. However, the Captain of the Maersk Alabama, Captain Richard Phillips, was taken as a hostage by the Somali Pirates.

While the ship may have been hijacked by Pirates, Captain Phillips (and any other crew member who may have sustained injuries in the assault) still has remedies under the Jones Act for any injuries he may sustain as a result of being taken a hostage. The Jones Act generally protects injured seamen, entitling them to medical treatment, lost wages and damages for their injuries. At first glance, it may appear that the Jones Act does not apply in situations involving hijacking, as 1) it is the hijackers, not the crew or owners of the vessel that are directly responsible for the injuries sustained and 2) hijackings are relatively rare and unpredictable. However, given the recent rise increase in pirating activities, these are not so rare as to be unpredictable and preparations could have been taken to avoid these types of situations.

Many, if not most, non-military ships are ill-equipped to defend themselves if attacked. In many areas however, the drastic increase in pirating activities and hostile actions towards vessels demands that vessel owners reconsider their policies that limit or prevent the use of firearms that could be utilized in holding off an attack or siege. Somalia’s Coastline, almost 2000 miles long, has been an area of increased pirating activities, and any vessel destined for this area needs to take this threat seriously.

The Jones Act doctrine of “superseding intervening cause” limits the vessel’s liability to its employees in situations in which the injuries are caused by a third party, not associated with the vessel. However, to qualify as a superseding intervening cause, several factors must be met. First the injuries must be different than those which would have otherwise resulted. As explained above, since it was well known that the area had seen a sharp increase in pirating activities, the dangers were well known. It was the failure of the ship to adequately prepare to deal with such a situation and/or avoid the area that resulted in Captain Phillips being taken as a hostage. While this may seem like an unusual “injury” to the average seaman, given the circumstances the risks were well-known. No, this is not the average herniated disc or blown-out knee that maritime attorneys generally handle, but any injuries resulting from Captain Phillips being taken as a hostage were not different than those that would have otherwise resulted had the ship been prepared to deal with an encounter with the pirates.

Second, the injuries must be extraordinary and unforeseeable. As stated above, they were not unforeseeable. It would be surprising if the crew were not at least warned of the dangers of entering the Somali waters, and those dangers certainly included an encounter with Pirates. The pirates have a history of sinking ships, killing crewmembers, stealing cargo, and taking hostages. While being taken as a hostage may seem like an extraordinary and unforeseeable outcome of just about any other voyage, it does not meet these criteria when traveling along the Somali coast.

Finally, the intervening party must have operated independently of any situation created by the ship. Keep in mind all three factors must be met for the doctrine of superseding intervening cause to arise, and the first two certainly do not. The injures that may arise are certainly not different than the type you would expect to occur when failing to adequately prepare to defend a vessel from pirates when traveling through their waters, and for the same reason the situation was not unforeseeable. While this third prong may seem a little more difficult, since the crew had no control over how the Pirates decided to operate, it too does not appear to be met. The ship was the target, and the ship coming into the area created the opportunities for the pirates. Pirates have recently been able to obtain large ransoms for their hostages, and the crew’s very presence in the area creates another such opportunity. Therefore, it can not be said that the Pirates intervening involvement was not created by the ship’s voyage into the area.

With the exception of Captain Phillips, the crew of the Maersk Alabama has been fortunate thus far to have avoided captivity. Defending a ship using fire hoses against automatic weapons, the will to avoid being taken against rocket propelled grenades, does not seem to be a “fair fight.” Though attacks on U.S. Flagged ships have been rare, these situations do create liability on behalf of the crew’s employer, and any seaman sustaining injuries during such an encounter should seek legal assistance in addressing the potential remedies that may be available.

A place to start – the Jones Act

In FELA, Jones Act Law, Maritime on April 12, 2009 at 2:03 PM

This space will be used to assist those that have been injured while working in harbors and on our Earth’s oceans.  As the senior partner for Ogletree Abbott Law Firm in Houston, Texas I have led the cause in fighting for the rights of injured Maritime Workers across the United States.

I wish to use this blog to pass legal advice to those searching for an answer in their own legal strife but must first “pay the bills”.  Two years ago I published the book “Jones Act & Maritime Law for Injured Workers“.  The completion of this work inspired me to build a website dedicated to helping those hurt in such accidents.  People do not fully understand what the Jones Act entails and I encourage you to read the Wikipedia article that descibes each law that the “Act” commonly refers to.  If you wish to learn more please see shipguide.com for further writings by myself on the subject.