What Are the Obstacles to Prosecuting Wrongful Death at Sea?
When occurring in a marine environment, the difficulty in litigating a personal injury or wrongful death claim becomes several times greater.
Assembling the bare facts involved in such a case is a challenge unto itself, to say nothing of proving ultimate liability. Veteran maritime lawyer Adam Lotkin expands upon these difficulties in this feature, illustrating the challenges legal teams must overcome in order to achieve success.
By far, some of the biggest challenges to preparing for and engaging in meaningful litigation involve acquiring proof of the mechanism of injury or death by admissible evidence. ‘Location, location, location’ is an often repeated phrase in the real estate world, but it is equally poignant when describing collecting evidence on large and small vessels in various locations locally, nationally, or around the world.
When a person is injured on a vessel, untangling and connecting the dots to assemble and organise tangible and verifiable evidence is a challenge for attorneys representing the injured person. Maritime cases can happen in a variety of marine settings across the globe; it is never an easy task to have to talk to witnesses, collect evidence by way of statements, live testimony, video or audio and digital formats, conduct surveillance and finally connect that to policies or lack thereof by the defending vessel owners, charters or companies.
Beyond this, an injured person often does not contact a lawyer until days or even weeks later, when disembarked from their work vessel. They may not have a clear chain of events of what happened or why. Counsel for the injured person must create timelines and a chain of medical events and try to figure out – after the event – both how and why it occurred.
Beginning with first-person statements, collecting information about the ownership and company potentially employing the injured party and their safety practices and training becomes vitally important to proving a case days, weeks, or years after the injury producing event.
When a person is injured on a vessel, untangling and connecting the dots to assemble and organise tangible and verifiable evidence is a challenge for attorneys representing the injured person.
One of the initial challenges to plaintiff’s counsel in maritime injury and wrongful death actions, as well as general admiralty injuries and death claims is finding witnesses, colleagues and fellow crew members who are willing to tell the truth despite the potential sacrifice of their own job or adverse job actions for going against another colleague or their employer. Most helpful witnesses are honest people who are put in a tough situation or ‘Catch-22’ when they are asked to testify or provide information that could jeopardize their own employment.
Knowledge of a vessel’s long-term unseaworthiness, a lack of training on the employer’s behalf and failing to recognise dangerous job requirements or unreasonably dangerous job assignments, especially on incidents that occur half way around the world or in foreign ports, is no small task for the practitioner maritime attorney. Soon after incidents occur, there may be multiple safety meetings, changes to policy or assignments or tasks and fixes to an unseaworthy situation or defect of a vessel such that proof thereafter will be difficult. Some vessels and industries (secure ports) have prohibitions on having recording devices such as cell phones on the vessels when they are underway or at sea doing their jobs for various reasons, including national or international safety.
Next, the legal practitioner handling wrongful death and personal injuries in the maritime and general admiralty arena will encounter challenges in obtaining detailed accident reporting by local, state or international organisations related to employee and maritime industries safety. Coast Guard incident reporting, United States OSHA reporting and investigation, as well as their overseas counterparts’ required reporting of incidents, is often inadequate and not generated to assist the injured worker or family of a wrongfully killed passenger, crew member or maritime seaman.
Where root cause analysis is helpful and should be a very detailed and factual analysis by the investigating agency for the international port, association, or government, lawyers often will find these reports will customarily blame the injured employee or crew member. Most international large vessel owners and contractors have their own internal accident reporting forms and investigation, which have been vetted by the defence and insurance industry to make certain there is ample ability for the company and its management to absolve itself of civil liability and jeopardy while setting up legal defenses such as contributory negligence, act of God or nature, and other blameless reasons for the injury producing incident.
Most witnesses related to the company will not be forthcoming or eager to assist an injured employee that is preparing for litigation against their employer. While this is human nature, it thwarts continuing safety improvements in the maritime industry and will continue to stifle progress and safety advances in the very dangerous maritime industry.
Understanding the differences between the various state and federal laws is critical to effectively prosecuting the case for an injured or wrongfully killed employee, passenger, or crew member. Knowledge of the interplay between the Death on the High Seas Act and the Jones Act is essential, as well as general maritime law for injury and wrongful death cases.
Like any state litigation in wrongful death or personal injury, it is helpful to know what must be proven under the Jones Act or Death on the High Seas Act in state or federal court so your investigation and discovery can be tailored specifically to obtaining provable and admissible evidence far in the future in the presiding court. Notice of unseaworthiness, perils, defects, and a lack of job safety analysis or job hazard analysis and corroborating inadequate training by a maritime owner or employer is critical to overcoming the challenges facing a plaintiff’s attorney in such litigation.
Adam Lotkin, Partner
160 West Brambleton Avenue, Norfolk, VA 23510, USA
Tel: +1 757-622-5000
Adam Lotkin has been practicing law for nearly 28 years and does so with the passion for justice. Adam has helped thousands of clients obtain justice for personal injury and other grievances and has been lead counsel in over 120 jury trials in the Commonwealth of Virginia and Federal Courts. He has also served on the Board of Governors for the Virginia Trial Lawyers Association for nearly a decade and has been an active part of various trial advocacy associations, including the Maritime Lawyers Association.
Rutter Mills LLP is a Virginia-based law firm specialising in personal injury, auto accidents, workers’ compensation, social security and maritime injuries.