How can boat captains protect against litigation? Get P&I insurance, says attorney Jurgen Jensen, and use a medical questionnaire to screen prospective crew.
When a fisherman falls sick or injured during the season, who pays the medical bills – the crewman or the skipper? That was the topic covered by Dillingham attorney Jürgen Jensen at a recent Business of Fish session at the Bristol Bay Campus.
Boat captains can sometimes be on the hook for “maintenance and cure,” which Jensen explain is similar to worker’s compensation.
"Injuries are pretty obvious: somebody's gonna get hurt. If you lose a finger, obviously that's an injury that could happen on the boat," said Jensen. "But this can also come up with illnesses. If somebody falls ill with cancer and they're on your boat fishing, the court will say that you owe maintenance and cure. You will owe for medical bills while they're getting cured of cancer, and you'll owe the daily maintenance rate, which generally ranges between $35 and $55 dollars a day."
There are some exceptions; generally, a captain won’t be held liable if the crew member exhibits “willful misbehavior” – drinking heavily, for example – or if the worker conceals a pre-existing condition, like a back injury from a previous job.
But, Jensen says, there have been many odd cases that may strike fear in boat owners.
"This one, actually, I find disturbing. A gentleman fell on the boat, hit his head, complained about the headaches, but didn’t get medical care for it," said Jensen. "He was later fired for fighting. Five months later, he came up with a brain tumor. Because he complained about headaches, the court said that that arose when he was in the service of the vessel, and they held the boat liable for maintenance and cure."
In a worst-case scenario, Jensen says, a federal court can sue not only a boat captain but they can arrest the boat itself, potentially leaving it high and dry while litigation works itself out.
The best thing a captain can do to protect against these scenarios, says Jensen, is to get P&I insurance – that’s Protection and Indemnity Insurance.
"Make this the insurance company's problem. Don't involve yourself with this," urged Jensen. "I have had a case very recently of an uninsured captain who got held up for exactly what I just talked about that. Don't get held up like that, because you won't be able to keep your boat if they want to take it."
"You can't hide your boat in bankruptcy," said Jensen. "You can't get around it any other way."
It’s also a good idea, he said, to have prospective crew fill out a medical questionnaire before they sign a contract.
"You want to find out who you’re hiring and if they have any injuries, because if they misrepresent those injuries and they get injured, you can get around paying that M&C," said Jensen.
Jensen said it's important to pay attention to their answers as well; if they fail to check a box or skip over an answer, you can still be held liable.
The Alaska SeaGrant “FishBiz Project” has a sample crew contract with a medical questionnaire, as well as more information about the types of insurance policies fishing vessels should carry.