Guam – District Court Judge Francis Tydingco-Gatewood has again denied a motion from Dongwon Industries to dismiss a wrongful death suit filed by Amy Hill, the wife of Captain David Hill.
Capt. Hill was the skipper of the “Majestic Blue”, a purse seiner, which sank in the western Pacific in calm seas and good weather after taking on water in June of 2010.
Twenty-two of the twenty-four crewmembers onboard abandoned ship and were later rescued by the F/V Pacific Breeze. After two days of search and rescue by the United States Coast Guard, the two remaining crewmembers, Captain Hill and the Vessel’s chief engineer, were not found.
Amy Hill sued both Dongwon and Majestic Blue Fisheries claiming negligence led to the wrongful death of her husband.
In its motion for dismissal, Dongwon argued that under the Jones Act, only one employer may be sued in such cases and since Hill sued both Dongwon and Majestic, the case against them should be dismissed.
[ Capt. David Hill in Florida w/ daughter Quinn Hill, before his death]
However, Judge Tydingco-Gatewood notes in her summation of the Relevant Factual Background that:
“Majestic was formed by Dongwon, a foreign corporation incorporated under the laws of Korea. Dongwon acquired StarKist to expand its global reach and penetrate the U.S. tuna market through a recognized brand. In furtherance of this plan, Dongwon formed Majestic so that it could act as record owner of the Vessel. This would allow the Vessel to fly a U.S. flag instead of a Korean flag, conferring certain benefits. Dongwon then transferred the Vessel to Majestic for ten dollars.”
And she points out that although Majestic became the owner of record, the relationship between Dongwon and Majestic continued after transfer.
“Dongwon directly paid all employees of Majestic at all relevant times, including Captain Hill when he was captain of the Vessel. Dongwon employees also directly communicated with Captain Hill regarding issues related to his employment with Majestic, and made travel and other logistical arrangements for the crew.”
The Judge concludes that:
“At this stage of the proceeding, the Jones Act claims against Defendant Dongwon should not be dismissed merely because Plaintiff asserts that both Dongwon and Majestic were Decedent’s employers. The Ninth Circuit has “long held that whether an employer/employee relationship exists is usually a question of fact for the jury, so long as there is an evidentiary basis for its consideration.”
RELEVANT FACTUAL BACKGROUND:
*On or about May 20, 2010, the Vessel [Majestic Blue] departed Guam to begin a tuna fishing expedition.
*Captain Hill was the only United States national onboard.
* All the other officers were Korean nationals, and the remaining crewmembers were either nationals of Korea or of Southeast Asian countries.
* Although only a handful of people onboard the Vessel spoke English, no translator was provided as was standard practice on other similar vessels.
* Other officers of the Vessel were unqualified and/or incompetent. For example, the “Fishing Master” directed the Vessel in the wrong direction when leaving the port of Guam and the Vessel was forced to turn back.
* The Radio Officer was unable to perform his function properly, which resulted in Captain Hill having difficulty with transmitting required reports about the Vessel’s location and status to Majestic and Dongwon.
* Furthermore, the other officers and crewmembers routinely and deliberately ignored the orders of Captain Hill and violated international pollution treaties.
* Captain Hill’s attempts to exercise control over the other officers and crewmembers were futile.
* The Fishing Master was treated as the de facto captain of the Vessel. Dongwon and Majestic were aware of these violations as previous captains had reported these problems to them, and one even filed suit, alleging mutiny, abuse by crew, and violations of the International Convention for the Prevention of Pollution from Ships (MARPOL).
* On or about June 10 or 13, 2010, the Vessel sank in the West Pacific Ocean after it began taking on water in calm seas and good weather.
On October 26, 2010, Plaintiff filed the Complaint against Dongwon and Majestic.
Plaintiff alleged six claims:
(1) Survival Action for Negligence for Pre-Death Pain and Suffering Under the Jones Act Against Majestic and Dongwon
(2) Claim for Wrongful Death Under the General Maritime Law Against Dongwon and Majestic
(3) Claim for Wrongful Death Under the Death on the High Seas Act (“DOHSA”) Against Dongwon and Majestic
(4) Claim for Negligence Causing Wrongful Death Under the Jones Act Against Dongwon and Majestic
(5) Claim for Intentional Infliction of Emotional Distress Against Dongwon and Majestic for Amy Hill
(6) Claim for Invasion of Privacy Against Dongwon and Majestic for Amy Hill.