PARENTS' ANGUISH: Grief spawns fishing boat billAuthor(s): Nancy BlodgettSource: ABA Journal, Vol. 72, No. 8 (AUGUST 1, 1986), p. 32Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20758879 .

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PARENTS' ANGUISH

Grief spawns fishing boat bill When Robert and Peggy Barry

learned of the death of their son in a fishing boat accident off the Alaskan coast, they grasped for answers in their grief. Why did it happen? How did it happen?

They learned that their son, Peter, a 20-year-old Yale student, had ventured into the icy waters on a 70 year-old boat named the Western Sea which had:

No life rafts. No emergency radio beacons. No survival suits to protect

against the freezing waters. No insurance.

But it was their discovery that none of these safety features are re quired by law that spurred Barry and his wife to seek mandatory fishing boat standards through legislation.

"It's an unbelievably unregulated industry," said Peggy Barry of Wash ington, D.C. "Cars and trucks can't go out on the highway if they haven't been inspected. There is more regula tion of motorboats, which are used for pleasure, than there is of fishing boats." Seaworthiness inspections by the Coast Guard are not required for fishing vessels.

MOST HAZARDOUS Coast Guard figures show that an

average of 250 U.S. fishing boats sink and that 75 fishermen die off the na tion's coasts each year. Their figures also show that the death rate for fish ermen is seven times the national av erage for all industry groups and twice that of mining, the second-most hazardous occupation.

These statistics further inspired the Barrys to work for regulatory leg islation. "There has to be work done on vessel stability, design, inspection and licensing of skippers," said Mrs. Barry.

Mr. Barry's experience as a ca

reer diplomat made lobbying a little smoother. He is a former U.S. ambas

sador to Bulgaria. But it has still been a struggle. "These fishermen are the last of the cowboys," Mrs. Barry said. "They don't want regulation."

Mrs. Barry testified before the

House Committee for Merchant Ma rine and Fisheries in April in support of a "safe and sound U.S. fishing in dustry." Mothers of two of the other Western Sea victims also testified. Mr. Barry is now in Sweden heading the U.S. delegation to the East-West nego tiations on security in Europe.

REFORM BILLS Severals bills that propose safety

standards for the fishing industry are coupled with liability insurance mea sures.

H.R. 4415, introduced by Rep. Gerry Studds, D-Mass., would limit damage awards in personal injury ac tions arising out of accidents on board fishing vessels. It also would require additional safety regulations for fish ing boats.

Under this bill, a vessel owner could limit his liability to wages and other compensation lost by an injured seaman, provided the owner paid for the injured person's hospital and med ical expenses in addition to mainte nance payments of at least $40 per day. The vessel owner could not limit his liability if the injury, illness or dis ability was caused by his own gross negligence or willful misconduct.

The bill would allow the Secre tary of Transportation to prescribe regulations mandating emergency position-indicator radio beacons, life boats or life rafts, visual distress sig nals, communications equipment, and exposure suits for vessels operating in northern waters.

H.R. 4465 would require all fish ing vessels to carry some of this same equipment and would require Coast Guard inspection.

The legislators "did not want to decrease a person's right to sue unless vessel owners made their boats safer places to work," said Andrew Schwarz, a staff member for the Merchant Ma rine and Fisheries Committee.

H.R. 4407, introduced by Rep. Walter Jones, D.-N.C, would limit the liability of fishing vessels by barring actions for injuries that last less than a year, by reducing the applicable stat ute of limitations from three years to two and setting a maximum limit on nonpecuniary damages.

This only would apply to vessel owners who implemented certain safety standards and who paid the hospital and medical expenses of the injured seaman at the rate of $15,000

per year or 80 percent of the person's salary, whichever is greater. These standards would be voluntary for ves sels built before 1987 but mandatory for ones built later.

All fishing vessel owners also would be required to be licensed by the Secretary of Transportation and would be expected to display certifi cates of compliance.

"The fishing industry has been reluctant to increase the safety and survival standards for economic rea

sons," explained Schwarz. A sign that the tide may be turn

ing was the May editorial in the Alaska Fisherman's Journal. Sup porting the proposed safety provi sions, the magazine asserted: "Hiring crewmen aboard a fundamentally un safe vessel should no longer be legiti

mate business." ?Nancy Blodgett

STRUCK DOWN 111. malpractice law

The Illinois Supreme Court in June struck down a key portion of the state's year-old medical malpractice law but upheld four other sections of the law.

The court held unconstitutional a provision that required a three member panel?composed of a judge, lawyer and physician?to screen med ical malpractice cases before they are filed in court.

In Bernier v. Burris, No. 62876, the Illinois Supreme Court held that the panels failed to distinguish be tween judicial and nonjudicial mem bers.

"Either he [the judge] serves on the panel in his judicial capacity but is forced to share, with the two nonjudi cial members, his judicial authority to make factual determinations, or he is denied his judicial authority and has no greater authority than the other two panel members. Neither alterna tive is suitable," wrote Justice Ben Miller.

The court suggested all such panels might be unconstitutional be cause of their similarity to three member panels of circuit judges. Those panels are unconstitutional be cause the legislature lacks authority to create a new court and circuit court judges may not act in a group.

?Paul Marcotte

32 ABA JOURNAL / AUGUST 1, 1986

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