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Case 2:13-cv-02189-RAJ Document 1 Filed 12/06/13 Page 1 of 13

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT LAW AND IN ADMIRALTY No. SEAMAN'S COMPLAINT FOR PERSONAL INJURIES: JONES ACT, BREACH OF THE WARRANTY OF SEAWORTHINESS; AND MAINTENANCE AND CURE; DEMAND FOR JURY TRIAL PLAINTIFF IS ENTITLED TO FILE THIS ACTION WITHOUT PREPAYMENT OF COSTS, FEES, OR SECURITY THEREOF (28 U.S.C. 1916)

11 PUALOA LUI, an individual, 12 13 v. Plaintiff,

14 THE FISHING COMPANY OF ALASKA, INC. and DOES 1-10, inclusive, 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26

COMES NOW the Plaintiff and for a claim against the Defendants states: SEAMAN'S COMPLAINT FOR PERSONAL INJURIES: JONES ACT, BREACH OF THE WARRANTY OF SEAWORTHINESS; AND MAINTENANCE AND CURE; Page 1
MULLAVEY, PROUT, GRENLEY & FOE, LLP
2401 NW 65TH P.O. BOX 70567 SEATTLE, WA 98127-0567 (206) 789-2511 FAX: (206) 789-4484

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ALASKA WARRIOR (the Vessel). F/V ALASKA WARRIOR was and is a United States flag fishing vessel that operates on the high seas and on the navigable waters of the United States. Plaintiff is informed and believes that the F/V ALASKA WARRIOR will be within SEAMAN'S COMPLAINT FOR PERSONAL INJURIES: JONES ACT, BREACH OF THE WARRANTY OF SEAWORTHINESS; AND MAINTENANCE AND CURE; Page 2
MULLAVEY, PROUT, GRENLEY & FOE, LLP
2401 NW 65TH P.O. BOX 70567 SEATTLE, WA 98127-0567 (206) 789-2511 FAX: (206) 789-4484

I. INTRODUCTORY ALLEGATIONS

1.

Plaintiff PUALOA LUI (Plaintiff) was at all times herein mentioned a seaman

within the meaning of the Jones Act and the general maritime law. 2. Plaintiff brings and maintains this action and jurisdiction is vested herein pursuant

to the provisions of Section 33 of the Act of June 5, 1920, C. 250, 31 Stat. 1007, commonly known as the Jones Act, 46 U.S.C. 30104. The First Claim for Relief is brought pursuant to the Jones Act; the Second and Third Claims for Relief are brought under to the general maritime law. 3. 4. Plaintiff is a citizen of Samoa and a legal resident of the United States. Plaintiff is informed and believes that at all times relevant, Defendant FISHING

COMPANY OF ALASKA (FCA) is and was a corporation duly organized and existing under and by virtue of the laws of the State of Washington. 5. At all times herein mentioned, FCA was and is the legal owner of the fishing vessel

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 7. Plaintiff is informed and believes that all of the Defendants, including those sued as as DOES 1 through 10, inclusive, and therefore, Plaintiff sues these Defendants by such fictitious names. Plaintiff will amend the Complaint to allege their true names and capacities if and when ascertained. In the meantime, Plaintiff is informed and believes that each of the fictitiously-named Defendants are responsible in some manner for the occurrences herein alleged, and that Plaintiff's damages as herein alleged were legally caused by such Defendants. that may sound against such vessel in any such District Court arising out of the claims asserted herein at any time or otherwise if need should arise to obtain security for the satisfaction of such claims or to compel the attendance of any non-appearing in personam defendant. Any entities or persons with any ownership interest in such vessel are hereby put on notice of the assertion of a maritime lien against said vessel. 6. Plaintiff is ignorant of the true names and capacities of the Defendants sued herein the boundaries of one or more United States District Courts during the pendency of this action. To the extent not immediately served (i.e. arrested) in any such district, Plaintiff hereby reserves all rights to effectuate such service and to pursue any and all in rem claims

DOES 1 through 10, were and are the agents, alter egos, partners, joint venturers, coconspirators, principals, shareholders, servants, employers, employees and the like of their SEAMAN'S COMPLAINT FOR PERSONAL INJURIES: JONES ACT, BREACH OF THE WARRANTY OF SEAWORTHINESS; AND MAINTENANCE AND CURE; Page 3
MULLAVEY, PROUT, GRENLEY & FOE, LLP
2401 NW 65TH P.O. BOX 70567 SEATTLE, WA 98127-0567 (206) 789-2511 FAX: (206) 789-4484

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SEAMAN'S COMPLAINT FOR PERSONAL INJURIES: JONES ACT, BREACH OF THE WARRANTY OF SEAWORTHINESS; AND MAINTENANCE AND CURE; Page 4
MULLAVEY, PROUT, GRENLEY & FOE, LLP
2401 NW 65TH P.O. BOX 70567 SEATTLE, WA 98127-0567 (206) 789-2511 FAX: (206) 789-4484

co-Defendants, and in doing the things hereinafter mentioned, were acting within the course and scope of their authority as such agents, alter egos, partners, joint venturers, coconspirators, principals, shareholders, servants, employers, and employees and the like with the permission, ratification or consent of their co-Defendants and thus are legally liable for damages resulting from the acts or omissions of the others.

II. FIRST CLAIM FOR RELIEF (Negligence Under the Jones Act) 8. Plaintiff refers to and by that reference incorporates as though fully set forth herein

each and every allegation contained in paragraphs 1 through 7 above. 9. At all times herein mentioned, Defendant owned, operated, managed, maintained,

controlled, chartered and navigated F/V ALASKA WARRIOR. At all times relevant, Defendants owned, operated, managed, maintained, controlled, chartered and navigated the Vessel and employed its crew, including Plaintiff. At all times relevant, Plaintiff had the legal status of a seaman under the Jones Act, 46 U.S.C. 30104.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 number of days earlier he had sprained his knee, also due to the negligence of Defendants and the unseaworthiness of the Vessel, when a crewmember failed to properly handle some deck gear. SEAMAN'S COMPLAINT FOR PERSONAL INJURIES: JONES ACT, BREACH OF THE WARRANTY OF SEAWORTHINESS; AND MAINTENANCE AND CURE; Page 5
MULLAVEY, PROUT, GRENLEY & FOE, LLP
2401 NW 65TH P.O. BOX 70567 SEATTLE, WA 98127-0567 (206) 789-2511 FAX: (206) 789-4484

10.

Plaintiff began working for Defendant FCA in approximately 2002 and over the

course of the next 10 years he was employed as a regular deckhand for FCA first on the ALASKA VOYAGER and then on the ALASKA WARRIOR. 11. On or about October 22, 2012, Plaintiff suffered an accident causing injury to his

knees, low back, head, shoulders, neck and right wrist, during the off loading of the ALASKA WARRIOR. At the time, Plaintiff was employed by Defendants as a deckhand and had the legal status of a "seaman " under the general maritime law. On or about that date, Plaintiff reported to his scheduled shift to off load and as he approached the hatch he looked into to the hold and saw there was no ladder to descend into the hold. Plaintiff requested a ladder and his supervisor refused to allow one to be brought. Plaintiff's supervisor made fun of Plaintiff and ordered him to jump into the hold, telling him that he did not need a ladder. Based on direct orders from his supervisor, Plaintiff jumped into and landed on the crates severely injuring himself. He left the Vessel on or about November 5 or 6,2012, and has been in pain and completely disabled since that time. 12. Plaintiff was particularly susceptible to injuring his knee in this jump because a

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SEAMAN'S COMPLAINT FOR PERSONAL INJURIES: JONES ACT, BREACH OF THE WARRANTY OF SEAWORTHINESS; AND MAINTENANCE AND CURE; Page 6
MULLAVEY, PROUT, GRENLEY & FOE, LLP
2401 NW 65TH P.O. BOX 70567 SEATTLE, WA 98127-0567 (206) 789-2511 FAX: (206) 789-4484

13.

Defendants were negligent for committing various acts or omissions, including, but

not limited to, the following: (a) Failing to provide Plaintiff with a safe place in which to work, including,

specifically, safe and seaworthy access into the partially unloaded fish holds; (b) Failing to exercise ordinary care under the circumstances to have the

Vessels deck, hull, hardware, machinery, apparel, equipment, fittings, appurtenances, tackle, gear, tools, work methods, training, supervisors, direct orders, standing orders procedures and crew in such a condition that Plaintiff would be able to perform his duties with reasonable safety; (c) (d) (e) Ordering Plaintiff to jump 8-10 feet down into the fish holds on the Vessel; Failing to properly train its supervisors in charge of unloading the fish cargo; Violating laws, statutes, regulations and industry standards enacted to

promote safety of seamen and of life at sea; (f) (g) Failing to provide a seaworthy and properly equipped Vessel; and Failing to have policies and procedures in place to prevent supervisors from

ordering crew to jump excessive distances into the holds of the Vessel.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants and was performing duties of the type traditionally performed by a seaman. 18. At the time and place alleged herein, by the provisions of the General Maritime Law 16. SECOND CLAIM FOR RELIEF (For Breach of the Warranty of Seaworthiness Under the General Maritime Law) Plaintiff refers to and by that reference incorporates as though fully set forth herein 15. As a further legal result of the aforesaid negligent acts or omissions of Defendants, 14. As a legal result of the aforesaid negligent acts or wrongful acts or omissions,

Plaintiff has sustained and will continue to sustain serious physical and emotional injuries, and he has had to undergo several major surgeries as of this date.

Plaintiff has sustained and will continue to sustain damages, including and without limitation, general non-economic damages, special economic damages, medical expenses, life care expenses, pain and suffering, all of which will be established at trial according to proof. III.

each and every allegation contained in paragraphs 1 through 15, above. 17. At all times herein relevant, Plaintiff was acting in the service of the Vessel and

of the United States, Defendants and their agents, employees and servants warranted to SEAMAN'S COMPLAINT FOR PERSONAL INJURIES: JONES ACT, BREACH OF THE WARRANTY OF SEAWORTHINESS; AND MAINTENANCE AND CURE; Page 7
MULLAVEY, PROUT, GRENLEY & FOE, LLP
2401 NW 65TH P.O. BOX 70567 SEATTLE, WA 98127-0567 (206) 789-2511 FAX: (206) 789-4484

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21. As a further legal result of the aforesaid breaches, Plaintiff has a senior maritime Claim for Relief were pervasive and of sufficient frequency and duration as to become conditions of the Vessel and constitute unseaworthy conditions of the Vessel and therefore were further breaches of the warranty of seaworthiness. 20. As a legal result of the aforesaid breaches of the warranty of seaworthiness, Plaintiff 19. Defendants and each of them breached this warranty in that the Vessel, its decks, Plaintiff that the Vessel, its decks, gear, equipment, appurtenances, tools, crewmembers and work methods were seaworthy and in compliance with applicable laws, statutes and regulations enacted for the safety of the crew.

gear, equipment, appurtenances, tools, safety equipment, crew members and work methods were neither seaworthy nor in compliance with applicable laws, rules and regulations enacted for the safety of the crew alleged above. Specifically, the fish holds or wells were unfit for their intended purpose in so far as they did not have any safe means of access during the unloading process. Further the negligent acts or omissions set forth in the First

sustained the injuries as set forth herein and suffered and has suffered and continues to suffer the general and special damages as set forth herein.

lien against the Vessel. IV. SEAMAN'S COMPLAINT FOR PERSONAL INJURIES: JONES ACT, BREACH OF THE WARRANTY OF SEAWORTHINESS; AND MAINTENANCE AND CURE; Page 8
MULLAVEY, PROUT, GRENLEY & FOE, LLP
2401 NW 65TH P.O. BOX 70567 SEATTLE, WA 98127-0567 (206) 789-2511 FAX: (206) 789-4484

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SEAMAN'S COMPLAINT FOR PERSONAL INJURIES: JONES ACT, BREACH OF THE WARRANTY OF SEAWORTHINESS; AND MAINTENANCE AND CURE; Page 9
MULLAVEY, PROUT, GRENLEY & FOE, LLP
2401 NW 65TH P.O. BOX 70567 SEATTLE, WA 98127-0567 (206) 789-2511 FAX: (206) 789-4484

THIRD CLAIM FOR RELIEF (For Maintenance and Cure and the "Willful and Arbitrary" Breach of the Duty to Provide Maintenance and Cure) 22. Plaintiff refers to and by that reference incorporates as though fully set forth herein

each and every allegation contained in paragraphs 1 through 21, above. 23. By reason of the actions set forth in the allegations above, Plaintiff was injured

while in the service of the Vessel. He was disabled from employment, and was required to undergo curative medical treatment. Plaintiff was, therefore, entitled to payment of all reasonable medical care (cure) and a reasonable rate of daily maintenance (sufficient to cover room and board) from on or about November 5, 2012, until he reaches maximum cure, a state where there can be no possible improvement in his physical condition by additional curative treatment. As such, Defendants owed and continue to owe maintenance and cure to Plaintiff. Defendants have provided no maintenance and cure. 24. Defendants' failure to provide timely maintenance and cure to Plaintiff was done in

a "wilful and arbitrary" manner designed to avoid their legal responsibilities and deprive Plaintiff, an ailing seaman, of his needed medical attention and sustenance and his substantive rights under the maritime law.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SEAMAN'S COMPLAINT FOR PERSONAL INJURIES: JONES ACT, BREACH OF THE WARRANTY OF SEAWORTHINESS; AND MAINTENANCE AND CURE; Page 10
MULLAVEY, PROUT, GRENLEY & FOE, LLP
2401 NW 65TH P.O. BOX 70567 SEATTLE, WA 98127-0567 (206) 789-2511 FAX: (206) 789-4484

25.

On or about November 6, 2012, after visiting a medical clinic in Dutch Harbor,

Alaska, Plaintiff was informed by the medical personnel that he needed to see an orthopedic surgeon in Seattle to address his various injuries. 26. Plaintiff informed Defendants of this referral to a surgeon and Defendants then

arranged for Plaintiff to fly to Seattle ostensibly to obtain medical treatment. However, upon his arrival in Seattle, rather than providing Plaintiff with medical care, Defendants gave him a plane ticket to American Samoa and told him to see a doctor there. 27. This was a ruse. Defendants had no intention of providing medical attention to

Plaintiff. Instead, they abandoned Plaintiff, giving him a one way ticket to American Samoa, knowing that he was injured and unable to obtain proper medical attention there. 28. When Plaintiff arrived in American Samoa, he tried to obtain medical care for his

injuries but he had no way to pay for it. Defendants did not respond to his telephone calls and letters. Plaintiff was eventually referred by a local doctor "off-island " to obtain imaging studies and to see a specialist. 29. After traveling to the mainland, Plaintiff was evaluated by an orthopedic surgeon in

San Diego, California, who recommended surgical treatment. Plaintiff sent this recommendation to Defendants and made a formal demand for maintenance and cure

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 malice, oppression and was in reckless disregard of Plaintiff's rights. V. PRAYER FOR RELIEF SEAMAN'S COMPLAINT FOR PERSONAL INJURIES: JONES ACT, BREACH OF THE WARRANTY OF SEAWORTHINESS; AND MAINTENANCE AND CURE; Page 11
MULLAVEY, PROUT, GRENLEY & FOE, LLP
2401 NW 65TH P.O. BOX 70567 SEATTLE, WA 98127-0567 (206) 789-2511 FAX: (206) 789-4484

from them. Defendants denied such demand, disputing that Plaintiff's accident ever happened. 30. Defendants' refusal to pay maintenance and cure under these circumstances was a

"wilful and arbitrary" breach of Defendants' duty to timely pay and administer Plaintiff's maintenance and cure benefits. In addition, the conduct alleged herein was malicious, oppressive and in reckless disregard of Plaintiff's rights, in support of an award of punitive damages. 31. As a direct consequence of Defendants' failing to pay Plaintiff's maintenance and

cure and the conduct alleged above, Plaintiff has suffered consequential damages, including, but not limited to additional pain and suffering, postponement of medical treatment, inability to provide for his family or himself, additional medical complications, financial damages and pain and suffering. 32. Plaintiff seeks judgment for any and all outstanding maintenance and cure owed as

of the time of trial as well as consequential and exemplary damages for Defendants' "wilful and arbitrary" breach of the duty to pay maintenance and cure, which was done with

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SEAMAN'S COMPLAINT FOR PERSONAL INJURIES: JONES ACT, BREACH OF THE WARRANTY OF SEAWORTHINESS; AND MAINTENANCE AND CURE; Page 12
MULLAVEY, PROUT, GRENLEY & FOE, LLP
2401 NW 65TH P.O. BOX 70567 SEATTLE, WA 98127-0567 (206) 789-2511 FAX: (206) 789-4484

WHEREFORE, Plaintiff prays judgment against Defendant as follows: 1. For all economic and non-economic damages allowable under the Jones Act and/or

the general maritime law in amounts according to proof at trial; 2. 3. 4. 5. 6. For all outstanding maintenance and cure owed at the time of trial; For an award of Plaintiff's attorney's fees and costs of suit; For punitive damages; For prejudgment interest on the amounts awarded; and For such other and further relief as this Honorable Court deems just and proper.

VI. DEMAND FOR JURY TRIAL Plaintiff hereby demands a trial by jury.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SEAMAN'S COMPLAINT FOR PERSONAL INJURIES: JONES ACT, BREACH OF THE WARRANTY OF SEAWORTHINESS; AND MAINTENANCE AND CURE; Page 13
MULLAVEY, PROUT, GRENLEY & FOE, LLP
2401 NW 65TH P.O. BOX 70567 SEATTLE, WA 98127-0567 (206) 789-2511 FAX: (206) 789-4484

DATED this 6th day of December, 2013. MULLAVEY, PROUT, GRENLEY & FOE, LLP

By /s/ Alan K. Foe Alan K. Foe, P.S., WSBA # 7343 By /s/ Carrie A. Ivy Carrie A. Ivy, WSBA # 34052 Mullavey, Prout, Grenley & Foe, LLP 2401 NW 65th Street P.O. Box 70567 Seattle, WA 98127 Telephone (206) 789-2511 Fax (206) 789-4484 Email: afoe@ballardlawyers.com caivy@ballardlawyers.com Attorneys for Pualoa Lui

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