‘Woefully insufficient’ settlement in crabbing deaths

Members of Joshua Porter’s extended family gathered last Memorial Day to honor his memory at the 74th Fleet of Flowers in Depoe Bay. Porter, 50, of Toledo, was one of three crab fishermen killed Jan. 8 when the 42-foot Mary B II capsized while trying to cross the Yaquina Bay Bar. From left to right in the rear are Denise Barrett Ramirez, Porter’s girlfriend; Dalee Johnson, one of Porter’s daughters; Ramirez’ granddaughter, Lilly Sleep; Porter’s ex-wife, Elaine Logan; and Tia Jensen, another of Porter’s daughters. The two boys in front are Dalee Johnson’s sons. (Photo by Lee J. Siegel)

(Editor’s note: this is part one of a three-part series)

Survivors of crab fishermen Joshua Porter and James Lacey will share more than $350,000 but less than $500,000 in a court settlement resulting from the Jan. 8 capsizing of the fishing boat Mary B II off Newport — a tragedy that killed Porter, Lacey and skipper Stephen Biernacki.

“Three guys die and there is a woefully insufficient amount of liability insurance” — $500,000 — held by boat owner Mary B II LLC, a company run by Biernacki’s mother, Mary B. Anderson, said Joe Stacey, a Seattle maritime attorney for Porter’s estate.

Chris Reilly, the Seattle maritime lawyer representing Anderson and her now-insolvent company, said the settlement exceeds $350,000. Reilly said he can understand Stacey’s view, “but from a legal perspective, there was no insufficient insurance. There was no law or regulation broken with regard to the amount of insurance.”

Unlike the liability insurance required of motorists, “to my knowledge, there is no requirement in any port in the United States to have any minimum liability coverage on your vessel,” Stacey said.

Reilly and Stacey said they didn’t know how the families were dividing the money. Porter’s personal representative, girlfriend Denise Barrett Ramirez, said, “We are settling with the other family, and I don’t want to talk about it until it’s all done.”

The settlement was finalized Sept. 27 in U.S. District Court in Eugene. It resulted from a Feb. 15 complaint filed by the boat owner under the federal Shipowners’ Limitation of Liability Act, which Congress passed in 1851 to promote U.S. shipping when Britain ruled the seas.

Instead of waiting to be sued, the law lets boat owners sue first and claim that they owe nothing or a limited amount to survivors unless the judge decides the boat owner knew the vessel was unseaworthy. The law limits the amount owed to the post-accident value of the boat and any pending freight. The Mary B II — which was wrecked when hit by a large wave while trying to cross the Yaquina Bay Bar — was worth $0, said the owner’s marine surveyor.

Other accidents in which vessels owners used the law to attempt to minimize their liability include the 1912 sinking of the Titanic, which killed more than 1,500 people; the 2018 duck boat sinking that killed 17 people on a stormy Missouri lake; and the Labor Day 2019 diving boat fire that killed 34 people off California.

By filing the complaint, Anderson’s company forced anyone with claims to come to federal court, where a judge, not a jury, handles the case and blocks any related lawsuits. A legal notice ran in April in the News-Times, setting a June 4 deadline for filing claims against Mary B II LLC.

Porter’s and Lacey’s estates responded on April 25 and June 4, respectively, disputing the attempt to limit liability and claiming damages for wrongful death and for the crewmen’s pain and suffering. Porter’s estate sought unspecified damages; Lacey’s asked for $3 million, including damages for emotional distress, psychological damage, economic loss and loss of service to his kin.

A month after the case was filed by Anderson, the Coast Guard held a May 13-17 hearing in Newport. It received testimony that Biernacki, 50, had 0.03 blood alcohol and an impairing level of methamphetamine in his bloodstream; after a career in the Atlantic, he refused advice about Yaquina Bay Bar conditions; was seen by two witnesses appearing drunk or acting agitated; took alcohol on fishing boats; grounded two boats, including the Mary B II; and assaulted a woman on a tuna boat.

Anderson testified Biernacki had more than 30 years’ experience at sea, put safety first, and said she was unaware of any drug use other than marijuana years ago.

Lacey, 48, had cannabis in his system, and Porter, 50, was clean. Porter had a drug abuse history, but had been clean since 2007, Ramirez said.

Lawyers for the dead crewmen hoped to defeat the boat owner’s attempt to limit liability, showing Anderson must have known about her son’s behavior. Reilly said Anderson, a retired Encinitas, Calif., chiropractor, is “a very nice lady” who never found any evidence of drug use by her son.

Most civil cases are settled. As part of the settlement, U.S. District Court Judge Michael McShane dismissed Anderson’s attempt to limit her liability and the Porter and Lacey estates’ damage claims.

“No decision on the merits was made,” Reilly said, noting that Anderson didn’t file a claim on behalf of her son’s estate, leaving more insurance money for the crewmen’s estates. On July 18, McShane had entered a judgment barring future claims by Biernacki’s estate and others who didn’t file claims by June 4.

The Mary B II owner’s liability policy is known as an “eroding” policy, meaning legal fees for defending the boat owner come first from the $500,000, with the rest — at least $350,000 — going crewmen’s estates and their lawyers. One-third of that normally would go to claimants’ legal fees, although Stacey said he charged less.

That leaves the remainder to be divided among the survivors: Lacey’s brother, Andrew Lacey, of Manahawkin, N.J. and possibly girlfriend, Malaika Vereen of Newport; and Porter’s four adult children, his mother Ginnie Porter and possibly girlfriend Ramirez. (Porter and Ramirez had a church wedding, but never got a license.)

Lacey and Porter both died without wills. Lacey’s estate was represented by attorney Doug Williams, of Bellingham, Wash. Andrew Lacey and Vereen didn’t respond to requests for comment. Williams declined to comment.

Sidebar story:

Notorious limitation of liability cases

The 1912 sinking of the Titanic is the most infamous case in which a shipowner tried to limit how much it paid survivors using the 1851 Shipowners’ Limitation of Liability Act.

More than 1,500 people died when the British passenger liner sank. Because many passengers were Americans, the owner White Star Line took the case “to the U.S. Supreme Court, which confirmed the owners of the ship were entitled to limited liability,” said Martin Davies, director of the Tulane Maritime Law Center in New Orleans. “It was a sailing error by the captain. The owners were not responsible.”

The post-sinking value was equal to that of 14 lifeboats and pending freight, $91,805. “Having established their rights to limit, the shipowner then settled, at least with the rich and powerful families,” Davies said. Settlements were a small percentage of initial claims.

Boat owner Branson Duck Vehicles and operator Ripley Entertainment claimed they had $0 liability after the July 2018 duck boat sinking on stormy Table Rock Lake, Mo., that killed 17 of 31 passengers. By midyear, Ripley, the parent company of Ripley’s Believe It or Not!, had reached settlements in 19 of 33 claims against it, and seven more were in negotiation or mediation, the Springfield (Mo.) News-Leader reported. The attempt to limit liability hasn’t been decided by a judge, and may not be if remaining claims are settled. At issue is whether the lake is a navigable waterway.

Transocean, the owner of the Deepwater Horizon drilling rig, cited the limitation act to say it owed no more than $27 million for its role in the 2010 BP oil well blowout in the Gulf of Mexico that killed 11 and injured 17. The attempt failed when the court ruled the owner knew of certain crew actions. BP, Transocean and others paid claims for billions, and pleaded guilty to crimes.

The owners of a diving boat that caught fire off California on Labor Day, killing 34 people, went to court seeking to limit liability to $0, the boat’s post-fire value. Analysts told the Los Angeles Times they doubted a judge would agree in the deadly and widely publicized case.

 

 

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