Breaking the Blacklist

BREAKING THE BLACKLIST

Contributed by Joseph M. Orlando, Esq.

and Amanda Orlando

Gloucester has a long and storied history in the fishing industry. For centuries, men from Gloucester supported their families from the sea. The fishermen were a hardworking group of men, mostly immigrants, with little education or the training to do anything but fish.

Life was good for fishermen and their families. Fish in the ocean were plentiful; Gloucester had hundreds of boats on which fishermen could get jobs, and though the work was physically demanding the money was good. Fishermen took “sites” on the boats for fishing trips of approximately 7-10 days at a time, often in the harsh weather of the North Atlantic, but the men accepted the risks and hardships for the rewards the job brought.

The best a Gloucester fisherman could ask for was a site on a boat which took regularly scheduled trips, promising the fisherman steady work and pay to support his family. Fishermen worked hard to protect their sites because the loss of them would be devastating to the fisherman and his family.

However, the job came with great risk as well. The harsh weather conditions, rolling deck and the physical demands of the job meant that many men were hurt on the job. Some perished at sea, and their families were left with nothing to live on: no pension from the boats existed. Back in the early 1900s, there was little social support network which existed for injured fishermen and their families.

The Merchant Marine Act of 1920, more commonly called the Jones Act, gave new rights to any worker who does the traditional work of a seaman, and provided the right to a jury trial should they bring a claim for personal injury sustained on the vessel. The Jones Act married these rights to the rights enjoyed by railroad workers under the Federal Employees Liability Act. With the Jones Act, for the first time, fishermen who were injured due to the negligence of the captain or crew could bring claims for their injuries and be heard by a jury.

When a fisherman was hurt on the boat, he was also entitled to Maintenance and Cure, which was medical treatment for the fisherman, for the injury suffered, and daily living expenses paid for by the boat’s insurer (for the fisherman only), while the fisherman was recovering from his injury.

Quickly, insurance companies who insured boats up and down the seacoast found an effective way to push back against having to pay for these claims brought by fishermen injured in the course of their work in this dangerous profession.

~ Michael P. Orlando (1923-2015) ~ (as written by Joe Orlando)

My father Michael P. Orlando, had a 6th grade education, and was a veteran of World War II, where he was twice injured; landed on Normandy for D-Day, and fought in and survived the Battle of the Bulge.  Like his father before him, he became a fisherman and supported his family by fishing. In 1957, when I was four years old, my father was injured while fishing. His leg was crushed during haul back, when he was hit by the fishing door, which weighed approximately 800 pounds, which fell onto his leg. He was out of work for a year.

At the time, my parents had three children. I was the youngest. My father’s injury prevented him from working. My mother, besides having three young children, also had a disabled husband to care for, so the family was left with zero income. My grandparents provided us a place to live, and we existed on the kindness of the Italian families in our neighborhood, who dropped off food and fish so that we could survive.

My father, suffering from a massive injury received while working as a fishermen hired a personal injury lawyer, and explained to him what had happened and who the witnesses were to his injury. He then learned that none of the witnesses were willing to testify on his behalf, because they had been threatened by the boat owner at the direction of the insurance company, that if they testified on behalf of my father, a severely injured fisherman, that they would lose their jobs on this vessel and no other vessel would hire them. As such, instead of telling the truth, his shipmates would instead testify according to instructions from the insurance company.

When my father recovered from his injury, and he tried to go back to work, none of the boats would hire him, because he had made a personal injury claim against the boat. He was told point blank by a number of captains, that they would like to carry him on the boat, but that they couldn’t, because if they did, the insurance company would drop the boat’s insurance, and the bank would not let the boat go out fishing without insurance.

Faced with the stark choice of never working again or being able to support his family, in order to be able to go back to work, he dropped the suit.

~What is the Blacklist~

The practice became known as the “blacklist” kept by the insurance companies, which was a list of all fishermen who brought claims for their injuries on the vessel, and fishermen who testified on behalf of those who brought claims. In time it actually stretched to include any fisherman who would not testify in direct accordance with the directives of the insurance company, thus guaranteeing that an injured fisherman would not have the right of access to the civil courts as every other American has in our legal system.

The insurance company blacklist was an effective and decades long practice which denied injured fishermen their right to be compensated for their injuries. The system was that insurance companies would advise the boat owners that if claims for personal injuries were brought against the vessel by a fisherman, that the insurance company would no longer insure the boat, if that fisherman’s name appeared on the crew list.

As a result, the boat owners would tell the workers that if they brought claims, then they would be barred from ever getting another site on a fishing boat. In essence, they could never work again. Perhaps more significantly, other crewmen who may have witnessed the injury were told by the boat owner that if they testified on behalf of the injured fisherman, they would similarly be prevented from getting work.

For men who were predominantly immigrants, uneducated, and had few transferrable work skills to do anything but fish, the thought that they would be prevented from earning a living and supporting their families for the rest of their lives was simply unthinkable. As such, the insurance companies could demand loyalty and obedience.

This practice permeated the entire New England fishery.  As a result, for decades, injured fishermen and their families, were denied the right to even bring a claim.

Even some of the fishermen who were willing to roll the dice and stand up to the boat owners found that the witnesses were perjuring themselves on the direction of the boat owners and insurance companies. The courts never even heard the issues on the merits, because the insurance companies and boat owners prevented the matter from ever reaching the court system.

~Breaking the Blacklist~

Because of the blacklist, maritime attorneys in the Northeast lost a lucrative client base, because they were unsuccessful at bringing Jones Act claims due to the organized opposition of the insurance companies. The longer the practice went on, and the insurance companies successfully blocked claims, the more arrogant they became.

With the constant expansion of what the blacklist was, it became more well known and what they didn’t understand at first, but came to learn, it became more difficult to maintain. In a community like Gloucester, which would circle around families in distress, fishermen would have to explain to their wives why they couldn’t help their neighbor, longtime friend, or a family member, by simply telling the truth in a courtroom.

As the practice grew, it became more unmanageable, it was more openly discussed, and sunlight was put on the practice, and the inherent unfairness and injustice of it.

The blacklist was broken over time in a long and painful process. A captain or boat owner whose son was injured on the vessel, would demand of the insurance company that his son or brother or nephew, would be taken care of,  or, he would tell the world what was happening by going to a maritime personal injury attorney and telling them the entire practice so that it could be explained in a courtroom to a jury. Boat owners eager to keep good crewmembers ultimately understood that they were at risk if they insisted on the blacklist with their injured crewmembers.

Once the practice grew so large in the Northeast, the allegations of this practice of the blacklist it appeared in more and more legal documents. It was clear that the insurance companies’ practice was violating the law because it was preventing fishermen from asserting their legal rights, and another violation of Federal law, witness tampering, and obstructing justice.

As perjury is a crime, suborning perjury and encouraging it, or demanding it, as what was happening here. While many judges seemed not to care, some did. And some would not allow it to happen in their courtroom.

Everyone in the fishing ports knew of the practice. It was applied unevenly. Not every insurance company was as fastidious about it as others. Until I opened my practice in Gloucester, none of the maritime attorneys were local. The attorneys with whom the fishermen consulted were not of their culture, so the fishermen didn’t feel as comfortable to tell the truth about their reality as they did with me, who came from a fishing family in downtown Gloucester.

Lawyers learned that witnesses, even if they initially told the truth, would bailout or change their testimony, or simply refuse to testify, once the insurance company understood that the witness was involved. Insurance companies would look at the plaintiff’s attorney’s witness list, contact the vessel, and have the boat owner direct the witness as to his expected testimony, irrespective if it be perjury, and that it be directed by the insurance company.

Even knowing all of this, I chose to open a practice in Gloucester, to fight for and represent the people with whom I had grown up. My family had been victimized by it, and I knew that the practice had to come to an end, and I decided to use retired fishermen to outline the practice as it had been for the past 30-50 years. The insurance company didn’t have the control of retired fishermen the same way. This proved to be vital in explaining to a jury of non-fishermen exactly what these hardworking men had gone through.

I opened my practice on January 1, 1980, and my first major trial was for a Boston longshoreman (commonly called a ‘lumper’) who had been injured while unloading fish. He was in the fish hold, forking and shoveling fish and ice into the basket, working directly below the hatch in the work area known as the ‘slaughterhouse.’ The winch operator, who used the winch head to hoist the basket, lost control of the line so as the heavy basket which had been lifted up to the hatch opening, suddenly and unexpectedly, it fell straight down on top of my client. The basket, full of fish and ice, weighs about 300-400 pounds. It landed on his back and shoulders, severely injuring him.

In a fishing vessel, the fish hold is down below, right on top of the propeller line that goes from the engine all the way underneath to where the propeller is. The fish hold is a big ice box. There are separate pens in the fish hold where different species of fish are stored.  The vessel takes on ice before they leave, and as the fish are caught and put in the appropriate pen, the hold man shovels ice onto the fish to keep it fresh. So, when they go into port 8-9 days later, the fish is still fresh and can be sold. Then, when you get into port, the fish will be taken out of the hold.

The center of the fish hold (slaughterhouse) is the working area of the fish hold. Around the slaughterhouse, there are walls from the vessels hull of the holding area towards the center where the man is working. If you pile fish into a pen as it built up, the fish would fall out to the slaughter house, so you had to build a 4th wall. They would do this with pen boards, which was generally 1×8 and 6 feet long, and create a temporary barrier/wall to keep the fish in the appropriate pen. Then, the hold man during the takeout operation, would go to the slaughterhouse, and with a pitchfork he would lift out the pen board, and fish and ice would start to fall and he would be able to shovel it into a basket which was most often a steel framed, canvas sided basket with a rope across the top.

When the basket was full of fish and ice, a line would come down, he would hook the rope, and the fisherman or lumper at the top (the hatch man) would signal the winch operator to lift the basket straight up. The guy in the hold would hold the bottom of the basket until the hatch man could control it through the hatch opening, and then it would swing because the winch would go through a line/pulley and that block was placed halfway from the fish hold and where you wanted the fish to be dumped. Once he let it go, it would swing, and the winch operator would have to quickly pull to lift the basket to the dock height, and then the man on the dock would catch and dump the basket to be sorted and weighed.

The blacklist did not extend to longshoreman (lumpers). The lumpers were doing a job traditionally done by fishermen. Fishermen would tell the captain to hire a lumper for them, so that they after 8-10 days away from their family, the fisherman could head home and didn’t have to do it, the lumpers pay would come out of the fisherman’s share. As they were working in the service of the vessel and paid by the boat, I concluded that they were in essence, an independent contractor. They were injured doing the work traditionally done by a seaman, so their personal injury cases could be brought under the Jones Act, which had never been done before.

I was told by the lawyers for the insurance company that they weren’t Jones Act seamen, and they moved to dismiss the case based on the fact that they claimed I mischaracterized the lumper. The court denied their motion, and saw it my way, that they were, in fact Jones Act seamen, and so the case proceeded.

We tried the case, and were able to use dock workers, people who worked for the fish house, as witnesses. So, because it hadn’t happened at sea, the insurance company didn’t have control over these specific witnesses. I also put the winch operator on the stand, who was very uncomfortable telling the truth, but he finally did, on the stand, tell the jury that he lost the line and the basket fell on my client. I asked the witness if he had been threatened, and he was squirming. The judge asked him what I meant by threatened. I explained the blacklist to the judge in front of the jury. The judge appeared shocked and looked at the witness and said, “is what Mr. Orlando said true?” and the witness said, “yes.”

Now there was a federal judge who was personally acquainted with the practice. Judge David Nelson, the first black Federal judge in Boston, acted decisively. The insurance company lawyers were screaming and yelling that I had told the tale of the Blacklist in front of the jury, and demanded a mis-trial. That request was denied and they couldn’t stop the judge from seeing the truth. It was now out in public.

This was the beginning of the breaking of the blacklist.

That was 1980, the jury went out to deliberate, and came back with a verdict of $350,000 plus interest, and with interest it was about $450,000 which in 1980 was a great deal of money for a dock worker, and, in fact, compensated him for all of his future anticipated earnings and covered his medical expense and he also was awarded worker’s compensation, which covered his medical expenses into the future.

After this victory, which was publicized in all major New England newspapers, fishermen began realizing that they might be able to have similar help from the courts.

The practice didn’t immediately end, but it had grown so big and unwieldy that it in effect ate itself and the dishonesty upset the fishermen, and not every boat owner was willing to lie to protect an insurance company. Additionally, fishermen and maritime workers, so often hurt in this dangerous line of work, realized that there was a path for them to be compensated for their injuries, and that they had legal rights. For the first time, fishermen, especially Gloucester fishermen, realized they did not have to be afraid, and that they had someone to fight for them.

Another factor was very fortunate, that new insurance companies came into the industry. Because the insurance premiums were so high on fishing boats, other insurance companies came into the industry that didn’t practice the blacklist. Boat owners could move to new insurance companies which choked the traditional ones to some extent through the free market.

All of these events joined together to break the blacklist. I was proud to be a part of destroying this harmful and illegal practice, as a way to help the hardworking fishermen and their families who I had grown up with; in the city in which I was born and raised.

~ ~ ~

AUTHOR’S AFTERWORD

The story of Gloucester fishermen and their families; and the way the blacklist impacted them, is shown in a fictional, but accurate, form in my novel, The Fisherman’s Son. I am proud to say that the business I started in 1980 to represent injured people on Cape Ann, continues today, 43 years later.  My son, Joseph M. Orlando Jr.,  now owns the law firm which continues to fight for injured people against powerful insurance companies, as we always have.