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Maritime Accidents – Taking Legal Action in Alaska

We commonly hear about the road, rail, and air accidents all year round. However, fewer
people are aware of the risks faced by people who have jobs at sea. These jobs could range
from commercial fishing, cargo ships, to oil rigs. All these jobs are prone to accidents either by
mistakes or tragedies. In case a maritime accident occurred due to negligence, the employee
has a right to take legal action and earn compensation.

Types of Accidents at Sea

Maritime accidents could be of different types. A boating accident, which may include a fishing
boat accident or crabbing boat accident, is quite common. However, accidents at sea could be
more complicated than that. There are accidents that can occur offshore in oil rigs, cruise
vessels, tugboats, etc. commercial fishing accidents can occur both onshore and offshore. Other
onshore accidents include crane mishaps and accident in shipyards.

Causes of Maritime Accidents

There are varying maritime jobs and seamen are often exposed to dangerous conditions.
Maritime companies are required to take health and safety measures to reduce the risk seamen
face during their jobs. However, there are situations where the proper safety standards have
not been met and the negligence can lead to maritime accidents.

Here are a few negligent situations that may occur:

  • Unsafe working environment
  • Lack of safe or appropriate equipment
  • Absence of safety gear
  • Poor training
  • Lack of immediate medical care following an offshore or onshore accident

If you live in Alaska and have been in a maritime accident due to negligence, you have the right
to take legal action. You can file a lawsuit to attain compensation for pain and suffering, lost
wages, loss of earning ability, becoming disabled, medical expenses, poor life quality. To go
through with legal action, you will have to hire an Alaska maritime attorney.

Maritime Claims
It is recommended to know what kind of claims you can make if you have been in a maritime
accident due to negligence:

Jones Act Claims
This claim is made on behalf of the employees who have been injured on vessels at sea or
docked ships.

DOHSA
It stands for Death on High Seas Act. This clam is for survivors when a wrongful death occurs
due to maritime employer’s negligence.

LHWCA
It stands for Longshore and Harbor Workers’ Compensation Act. This is for dock employees and
non-Jones Act workers who have been injured.

For more information on these and other legal claims you can make, consult a maritime
attorney first.

Maritime accidents could be as simple as a crab boat injury or be large-scale like a rig or
grounding of ships. But if you have been injured due to the maritime company’s negligence, it is
your legal right to seek compensation. Families can also consult maritime law firms if their
loved ones were victims of wrongful death.

An Alaska maritime attorney has the professional experience to guide you through the lawsuit
and ensure you receive rightful compensation.

Self-Driving Vehicles: Who is Liable for the Accident?

Self-driving vehicles may be a thing of the future, however, that future may be much closer than we once thought. Google has been performing on-road tests of self driving cars for the past few years and stated that they may become available within the next 3-5 years. California has already authorized autonomous driving vehicles within its borders. But if a human being is not driving the vehicle, who is responsible for the vehicle when it is involved in an accident? According to an article posted on extremetech.com accidents caused by autonomous driven vehicles have only resulted when the accident was caused by another manually driven vehicle. To continue reading about this developing issue please Click Here.

Vehicle Air Bags Recalled in Record Numbers

According to a recent USA Today article, since 2011 7.75 million vehicles have been recalled as a result of defective air-bags. It was noted that air-bags save roughly 2,700 lives per year. However, as technology improves and the number of air-bags that are placed in vehicles increases more and more vehicle air-bags have shown to be defective. To determine if you or your family’s vehicle has been included in the most recent vehicle recall please CLICK HERE to continue reading the article.

Oregon Tour Bus Crash Claims Lives of Seattle Residents

On December 30, 2012, a tour bus traveling along I-84 just outside Pendleton, Oregon careened through a guardrail and fell several hundred feet, killing 9 people and injuring 20 more. Read the rest of the story HERE

I-502(the Marijuana Initiative) Passed! Is Marijuana Legal Now?

Initiative 502, the marijuana reform initiative, was placed on the November 6, 2012 Washington ballot. The initiative passed with 55% of the vote supporting the legalization of marijuana. The passing of I-502 resulted is a landmark change to drug enforcement for the State of Washington and for the Country as a whole. The initiative is the first(along with Colorado) to legalize the recreational use of marijuana.

What Does 502 Allow Under State Law?

It allows for Washington adults 21 and over to legally possess up to 1 ounce of marijuana. 502 also states that specially-licensed Washington farmers will be allowed to grow marijuana which can then be sold in standalone marijuana-only stores operated by private Washington businesses, licensed and regulated by the state Liquor Control Board. Marijuana producers and processors, however, will be prohibited from having any financial interest in retailers. Public display and smoking in bars or other locations where tobacco smoking is prohibited, will not be allowed. Advertising and store locations will be restricted to minimize exposure to people under the age of 21.

When will the New State Laws go into Effect?

Initiative 502 will take effect 30 days after its passage date. This means that under state law it will be legal to possess up to 1 ounce of marijuana on December 6, 2012. However, you still can not smoke marijuana in public and can be cited an infraction for doing so. The state has until Dec. 1, 2013 to establish other key rules surrounding the use of marijuana. This means that despite being able to possess marijuana you can not legally buy it until next year.

Can You Get a DUI for Marijuana?

The answer is yes. The new law for DUI’s involving marijuana use will go into effect Dec. 6, 2012. The DUI law states that anyone (even medical marijuana users) can be cited for a DUI if they are found to have more than 5 nano-grams of THC in their blood. Remember an officer can not require you to submit to a blood test without probable cause.

What About Federal Laws?

The short answer is that Marijuana is still illegal under federal laws. This means that regardless of your compliance with Washington laws you can still be prosecuted for possession, cultivation, or distribution of marijuana.

What are the Federal Laws on Marijuana?

Under the Federal Controlled Substances Act(CSA) marijuana is currently categorized as a Schedule 1 controlled substance. A drug or chemical is classified as Schedule 1 if: “ 1)it has a high potential for abuse; 2)no currently accepted medical use, and 3)lacks accepted safety for use of the drug under medical supervision”. 21 U.S.C. Section 812(b)(1). Under the CSA mere possession of marijuana generally constitutes a misdemeanor and up to one year of imprisonment along with a minimum fine of $1,000. On the other hand, the cultivation or distribution of marijuana, or the possession of marijuana with the intent to distribute, can subject you to a felony, up to five years imprisonment and a fine of up to $250,000. 21 U.S.C. §841(b).

How do Federal Laws affect the State Law?

This is where the legality of Washington’s marijuana law gets a little hazy. The first question is: how can the State make a law which allows citizens to engage in conduct that is illegal under Federal law? The answer is the 10th amendment. Although, the U.S. Supreme Court has established Congress’s constitutional authority to enact the existing federal prohibition on marijuana under the Commerce Clause (decided in Gonzales v. Raich 545 U.S. 1 (2005))the principles of federalism found in the 10th amendment prevent the federal government from mandating that the states actively support or participate in enforcing the federal laws. The 10th Amendment states that “any powers not expressly granted to the federal government in the constitution nor prohibited by it to the states, shall be reserved for the states or the people”. Regulating drug usage within the state is not expressly reserved for the Federal government nor prohibited to the States. Meaning the state can constitutional enact drug enforcement laws that are not as strict as federal drug laws. The result is that marijuana usage is still illegal under federal law, States simply do not have to create laws that makes marijuana illegal as well, nor are state authorities required to enforce federal drug laws. However, the federal government can withhold federal funding from the State by conditioning such funds on the basis that the state enact legislation consistent with the CSA.

What About Preemption?

Even if the federal government is prohibited from mandating that states adopt laws supportive of federal policy, the constitutional doctrine of “preemption” generally prevents states from enacting laws that are inconsistent with federal law. Preemption comes from the “Supremacy Clause” found in Article VI section 2 of the U.S. Constitution. The “Supremacy Clause” states that “the Constitution, the laws of the United States, and all treaties made under the authority of the United States, shall be the supreme law of the land. This means that the federal government, in exercising any of its enumerated constitutional powers, must prevail(preempt) over any conflicting or inconsistent state exercise of power, thus voiding the state law.

Although an argument can be made that Washington’s “state action” (the marijuana law) is in conflict with the federal CSA and thus should be preempted; there are also two argument for why the state law arguably will not be preempted by federal law. First(1st), the state law does not necessarily conflict with federal law as it does not prevent someone from complying with the federal CSA, nor does state law force a person to break federal drug laws. For example, no Washington citizen is forced to possess, cultivate, or distribute marijuana under 502, thus 502 does not directly prevent or conflict with federal enforcement of the CSA. The second(2nd) argument is whether Congress actually intended the CSA to supersede(preempt) state policy. Congress often acts without intent to preempt state policy making or with an intent to preempt state policy on a limited set of issues. Congress may even intend state and federal policies to coexist. In the past courts have not viewed the relationship between state and federal marijuana laws as in conflict. With regard to the CSA specifically, Congress did not intend that the CSA displace all state laws associated with controlled substances. Under the federal (CSA)Controlled Substances Act, section 903 it specifically states:

“No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between the two”.

The result is that Washington’s Marijuana possession laws arguably will not be preempted on the basis that they conflict with the federal Controlled Substances Act. However, when the State begins licensing and profiting from marijuana production it is very likely that compliance with both state and federal laws will become impossible as they will arguably be in direct conflict with one another. Even if Washington’s legalization of recreational marijuana use survives, legalization under state law does not result in decriminalization under the federal law. This brings us to the final issue: whether the federal government will still attempt to prosecute Washington citizens under federal law?

What will the Federal Government Ultimately Do?

It is not entirely clear yet how the federal government will deal with the states legalization of recreational marijuana use, however, some incite may be gained by looking at the federal governments reaction toward the legalization of medical marijuana.

“Although individuals who previously used medical marijuana in compliance with state law were still in violation of federal law and subject to prosecution by federal authorities at any time, the Obama Administration in 2009 announced an informal policy that suggested federal prosecution in that situation would be unlikely. In an October 19, 2009, memorandum, now known as the Ogden memorandum, Deputy Attorney General David W. Ogden provided guidance to federal prosecutors in states that authorized use of medical marijuana. The memo stated that it was the Dept. of Justice’s desire to make “efficient and rational use of its limited investigative and prosecutorial resources,”. The memorandum also stated that while the “prosecution of significant traffickers of illegal drugs, including marijuana will continue to be a core priority,” federal prosecutors are instructed not to focus federal resources on individuals whose actions are in clear and unambiguous compliance with existing state laws. The memorandum made clear, however, that “such instructions to prosecutors did not preclude investigation or prosecution, even where there is clear and unambiguous compliance with existing state law, in particular circumstances where investigation or prosecution otherwise serves an important federal interest.”

As a result of the 2009 Ogden memorandum many people believed that the federal government simply did not have enough resources to enforce federal drug laws and thus would not attempt to. The states that legalized medical marijuana quickly saw an influx of marijuana dispensaries pop up. In reaction to the growing number of marijuana dispensaries the Dept. of Justice(DOJ) released a second memo in 2011. “The second memorandum clearly communicated that individuals operating or “facilitating” medical marijuana dispensaries, even if operated in compliance with state law, continue to be targets for federal prosecution. As a result, in the last two years we have seen a reported increase in the number of federal DEA raids on dispensaries and marijuana farms and the subsequent prosecutions of those who own and operate marijuana distribution facilities.”

For the time being it remains unclear whether the federal government will allow the state to take part in recreational marijuana production resulting direct opposition to the federal CSA. The federal government has two options: 1) the Department of Justice could turn a blind eye, using Washington and Colorado as testing grounds to potentially legalize marijuana nationwide, or 2) the DOJ could challenge the states, arguing that their marijuana laws are in direct conflict with the CSA and thus should be found void under of the Doctrine of Preemption. The decision will ultimately lie in the hands of the court.

Tort Reform and Medical Liability Limits: A Loss for the Injured

Tort Reform is a term that is commonly used in the media and is a very heavily debated political issue. Tort reform refers to the argument that damages should be limited in civil lawsuits brought against insurance providers for such things as medical malpractice. The argument is that because damages are not capped in such lawsuits it exposes insurance providers to paying huge settlements and in turn raises the cost of insurance premiums. However, in a recent article published by PublicCitizen[1], titled “Setting the Record Straight on Medical Liability Limits: Tort “Reform” Hurts Patients, Costs Billions, and Shields Those Who Cause Harm.” it is shown that tort reform only hurts injured victims of medical negligence and has little to no effect on the cost of insurance premiums. The article states that in 1999 the Institute of Medicine estimated that 98,000 Americans die from preventable medical errors each year. That number was estimated by Hearst Newspapers in 2009 to have grown to a staggering 200,000 Americans. Advocates of tort reform argue that those potentially 200,000 Americans killed every year by medical negligence should have their recovery limited to a specified amount even if it does not fully compensated for their losses.

As noted above the number of Americans who die from preventable medical mistakes has more than doubled in a 10 year period. Given that information it would be reasonable to assume that medical malpractice lawsuits must have doubled in that time period as well. However, 2008 was recorded as the lowest year on record for medical malpractice suits across the U.S. and that number has been steadily declining since 1990.

In Texas tort reform laws were passed in 2003 limiting liability for medical malpractice. Since the enactment of those laws, medical malpractice payments to injured patients in Texas have dropped by 67%. The more than 50% drop in malpractice payments would expectedly equate to lower insurance costs for Texas citizens, but that has not happened. Since 2003 the cost of health insurance in Texas has doubled and the state’s number of uninsured citizens has increased remaining the highest in the country.

Based on this information there appears to be no correlation between rising insurance costs and civil malpractice lawsuits. The only result that tort reform appears to produce is a loss for the victims of medical negligence.