Abbott Clay & Reed

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.

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