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ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MOHAMUD MOHAMED,

Plaintiff,

v.

F/V NORTHERN VICTOR, et al.,

Defendants.

CASE NO. C05-2019JLR

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The court held a bench trial in this matter on November 20, 2006. The court has

examined the parties’ evidence, considered testimony, and heard counsel’s arguments. 

The court has also reviewed the deposition transcripts submitted by counsel (Dkt. ## 41,

42, 43). The court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Plaintiff Mohamud Mohamed is a Somali national who came to this country as a

refugee in 2001. 

2. Shortly after arriving in the United States, Mr. Mohamed sought treatment for

various ailments, including back pain. In late 2001, his doctors performed a

Magnetic Resonance Imaging (“MRI”) test, which indicated degenerative disc

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ORDER – 2

disease. Mr. Mohamed treated his on-and-off pain with ibuprofen and underwent

physical therapy. He occasionally reported to his treating physicians for further

evaluation.

3. In June 2002, Mr. Mohamed saw Doctor Kirsten Paynter, who specializes in

rehabilitation medicine. According to Dr. Paynter’s chart notes, Mr. Mohamed

was contemplating getting a job on a fishing boat in Alaska. Dr. Paynter

encouraged him to seek lighter-duty employment and cautioned him against “hard

labor types of positions” given his spine anatomy. Exs. 13-67, 13-68. Her chart

notes also indicate that she told him that it was not “life-and-death” and that he

was “free to choose to do what he wishes,” but that hard labor could bring about

more problems. Id.

4. Mr. Mohamed continued to seek medical attention related to back pain through

October 2002. During this time period, Mr. Mohamed held various temporary

jobs, some of them light-duty, some heavy-duty. 

5. From November 2001 until September 2003, Mr. Mohamed’s back pain never

required him to miss days of work. 

6. In September 2003, while working for a manufacturing company doing mediumduty labor, Mr. Mohamed suffered a back injury when he bent over to pick up an

item off of the floor. Mr. Mohamed saw Doctor Aleksandra Zietak, who

concluded that Mr. Mohamed had suffered a “lumbar contusion.” Exs. 13-173,

13-177. She directed him to take ibuprofen, ice his back, and start physical

therapy. Ex. 13-173. 

7. In total, Mr. Mohamed missed three days of work related to his September 2003

back injury.

8. According to the chart notes, Dr. Zietak reviewed an MRI of Mr. Mohamed’s back

and communicated to Mr. Mohamed that the test results were “fine.” Ex. 13-177. 

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ORDER – 3

After roughly four weeks of treatment, Dr. Zietak discharged Mr. Mohamed with

no work restrictions. Exs. 13-180, 13-183.

9. In June 2004, Mr. Mohamed applied to work for Defendant Icicle Seafoods, Inc.

(“Icicle Seafoods”) as a fish processor. Mr. Mohamed had not sought medical

treatment related to his back since Dr. Zeitak’s discharge eight months prior. 

10. At the time Icicle Seafoods hired him, Mr. Mohamed had limited ability to read

and comprehend written English. 

11. As a prerequisite to a job offer, Icicle Seafoods required Mr. Mohamed to fill out

several forms, including a health questionnaire. Mr. Mohamed did not understand

most of the terms on the health questionnaire form and filled out his responses

with the help of another Somali national who was also applying for a job. 

According to Mr. Mohamed, this other Somali told him where to check the

appropriate boxes on the health questionnaire. 

12. In response to a question regarding whether he had suffered a prior back injury or

strain, Mr. Mohamed checked a box marked “N” for “no.” Ex. 14-30. In fact, he

checked “N” in response to all other questions, save for two: he checked “Y” in

response to a question of whether he had adequate vision and to a question of

whether he had a history of asthma. Id.

13. Upon receipt of Mr. Mohamed’s application, Icicle Seafoods interviewed him for

the fish processor position. Mr. Mohamed did not have difficulty carrying on a

basic conversation in English with Icicle Seafoods’s staff. 

14. Icicle Seafoods hired Mr. Mohamed to work aboard the Defendant vessel, the F/V

NORTHERN VICTOR.

15. As a fish processor, Mr. Mohamed’s task was to load pans of fish product from a

conveyer belt onto a freezer shelf, or “plate.” The freezer’s plates stacked one on

top of another, with the lowest plate at a fixed position six inches from the floor. 

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ORDER – 4

The pans of fish weighed somewhere between fifteen to seventeen pounds. There

were approximately eighteen shelves in the freezer unit.

16. The parties agree that loading the upper freezer plates did not pose a safety

concern; the parties strongly disagree over the relative safety of loading pans onto

the plates in the mid to lower range of the freezer unit.

17. Mr. Mohammed worked with five other seamen unloading the conveyer belt and

loading the pans of fish product onto the freezer plates. 

18. The pans of fish product moved relatively slowly on the conveyer belt, at a rate of

roughly six per minute. Crozer Dep. at 13-14. On average, each employee would

load one tray per minute. Id. The court does not find credible Mr. Mohamed’s

testimony that the fish trays came at a rapid rate of ten per minute per person. The

court is also not persuaded that Mr. Mohamed’s superiors constantly told him to

work faster.

19. Crew members had enough space (between the conveyer belt and the freezer) to

turn around and place the pans of fish product on the plates. Id. at 12. 

20. To reach the lower shelves, the fish processors were trained to kneel or squat. Id.

at 12-13. The vessel furnished knee pads to the crew for this purpose. Id. at 13.

The court is not persuaded that superiors instructed Mr. Mohamed to reach the

lowest shelves by bending or twisting from the waist. 

21. According to the vessel’s safety manager, the production manager directs the fish

processors loading the trays to break off into pairs. Id. at 39. If necessary, one

member of the pair could hand the pans of fish to the other worker, who could

kneel or squat in order to reach the lower shelves. Id. 

22. The crew members could adjust the upper shelves to bring them within reach.

23. The court does not find credible Mr. Mohamed’s contention that he had no control

over how to load the pans onto the freezer plates. 

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ORDER – 5

24. The court finds credible the vessel’s safety manager’s testimony that, in five years,

he has not heard of any back-related complaints from fish processors performing

Mr. Mohamed’s task.

25. Mr. Mohamed did not kneel to perform the task of loading the freezer unit; rather,

he bent over in order to reach the lower shelves. 

26. On August 8, 2004, Mr. Mohamed hurt his back while bending over to place a

plate on one of the freezer unit’s lower shelves. He heard a “pop” and thereafter,

felt pain and experienced a loss of mobility. 

27. Mr. Mohamed complained to his superiors about his back pain. At the time of

injury, the vessel was anchored in a remote location in Alaska. His superiors

arranged for him to depart the vessel a few days after the incident in order to

obtain medical treatment at the Iliuliuk Clinic in Alaska. 

28. Upon his return to Seattle a few days later, Mr. Mohamed went to Valley Medical

Center where he saw Doctor John Lazzaretti. Exs. 13-254-270. Dr. Lazzaretti

gave Mr. Mohamed some pain relief medication, ordered an MRI, and

subsequently diagnosed him as suffering from a broad-based disc protrusion with

an annular tear. Id.

29. In early September 2004, Dr. Lazaretti referred Mr. Mohamed to a physical

medicine and rehabilitation specialist, Doctor Kaya Hasanoglu. After discussing

treatment options with Mr. Mohamed, Dr. Hasanoglu gave Mr. Mohamed a series

of steroid injections in his spine over a period of several months. Exs. 13-272-

312. Mr. Mohamed also attended physical therapy sessions and a work

conditioning program during this time. 

30. In May 2005, Mr. Mohamed’s back problem became increasingly symptomatic

when he attempted to do some light-duty housework. Again, he saw Dr.

Hasanoglu who noted a severe level of discomfort. Exs. 13-352, 13-360. When

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ORDER – 6

Mr. Mohamed’s condition did not improve with conservative treatment, Dr.

Hasanoglu referred him to Doctor Mark Remington for a surgical consultation. 

Dr. Remington performed a microdiscectomy in September 2005. Ex. 13-410. 

31. In late 2005, Mr. Mohamed began a more aggressive work conditioning, or

rehabilitative “hardening” program, with the Peoples Injury Network. He

completed the program in February 2005; the providers at Peoples Injury Network

released him for medium-duty work. Exs. 13-463, 13-465.

32. At the time of trial, Mr. Mohamed was working as a valet in a parking lot.

33. Defendants paid for Mr. Mohamed’s medical expenses in the amount of

$51,866.44.

CONCLUSIONS OF LAW

1. The court has jurisdiction of this matter pursuant to 46 U.S.C. § 688 (the “Jones

Act”) and 28 U.S.C. § 1333 (general maritime law).

Maintenance and Cure

2. When a seaman is injured in the service of his vessel, the shipowner has an

obligation to pay maintenance (compensation for room and board) and cure

(payments for medical treatment necessary to restore the seaman to health). 

Vaughan v. Atkinson, 369 U.S. 527, 532 n.4 (1962); MARTIN J. NORRIS, THE LAW

OF SEAMEN §§ 26:5-26:6 (3d ed. 1985) (defining maintenance and cure). A

seaman’s entitlement to maintenance and cure continues until he reaches

“maximum cure” – a recovery as complete as the injury allows. Permanente S.S.

Corp. v. Martinez, 369 F.2d 297, 298-99 (9th Cir. 1966).

3. The court resolves any doubts as to the seaman’s right to receive maintenance and

cure in favor of the seaman. Vaughan, 369 U.S. at 532.

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1

Defendants urge this court to adopt a rule articulated by the Fifth Circuit in McCorpen v.

Cent. Gulf SS Corp., 396 F.2d 547 (5th Cir. 1968), which allows a finding of intentional

concealment even if the seaman has a subjective belief that his medical history is irrelevant to the

question of whether he can perform the job. In McCorpen, the court held that when the employer

affirmatively asks a seaman about a pre-existing condition in a pre-employment questionnaire,

what the seaman knew (or should have known) regarding the relevance of his preexisting

condition is immaterial. Id. at 548-49. Thus, where discovery reveals that a seaman’s answer on

an employment questionnaire is inconsistent with a diagnosis in his medical history, a defendant

prevails on what would otherwise be the most contested element of intentional concealment – i.e.,

whether the seaman has engaged in wilful misconduct. The Ninth Circuit has not directly ruled on

whether the seaman’s subjective belief matters, but at least implicitly rejected the McCorpen

standard in Omar when it cited Second Circuit authority, which McCorpen directly rejected. See

McCorpen, 813 F.2d at 990 (rejecting Sammon, 442 F.2d at 1029). 

ORDER – 7

4. When a seaman intentionally conceals his medical condition to a shipowner, he

may lose his entitlement to maintenance and cure. Burkert v. Weyerhaeuser S.S.

Co., 350 F.2d 826, 829 n.4 (9th Cir. 1965). 

5. A defendant must show that the seaman concealed a medical condition that “he

kn[ew] or should [have] know[n] is related to the illness or injury for which

maintenance and cure are requested.” Omar v. Sea-Land Serv., Inc., 813 F.2d 986,

990 (9th Cir. 1987) (citing Sammon v. Cent. Gulf S.S. Corp., 442 F.2d 1028, 1029

(2d Cir. 1971) (“The concealment of a previous condition is fraudulent only if the

seaman knows or reasonably should know that the concealed condition is

relevant.”)).1

 

6. The defendant must satisfy its burden with “substantial evidence.” Burkert, 350

F.2d at 831.

7. Courts take into consideration a seaman’s language skills in assessing whether he

has intentionally concealed a preexisting medical condition. Ahmed v. U.S., 177

F.2d 898, 900 (2nd Cir. 1949) (rejecting intentional concealment defense where

seaman had limited understanding of English and where doctor had previously

discharged him as fit for duty).

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ORDER – 8

8. Under the circumstances presented, the court concludes that Defendants have not

met their burden to show by substantial evidence that Mr. Mohamed engaged in

culpable conduct. Although Mr. Mohamed did not answer the medical

questionnaire accurately, he testified that he did not understand substantial

portions of the form. 

9. The evidence suggests that Mr. Mohamed could understand questions posed to

him orally; however, that same evidence is not sufficient to demonstrate a

commensurate level of reading comprehension. 

10. The court rejects Defendants’ argument that, because Mr. Mohamed accurately

marked “Y” in two places on the health questionnaire, he must have understood its

contents. Mr. Mohamed testified that the man who helped him fill out the form

knew he had asthma. Further, answering “yes” to two unrelated questions is not

inconsistent with Mr. Mohamed’s testimony that, at the time, he did not

understand the question regarding pre-existing back-pain. It is also not

inconsistent with Mr. Mohamed’s testimony that he simply marked boxes on the

form as instructed. 

11. Further, Mr. Mohamed testified that he believed he had no work restrictions and

that he was fit for duty. Indeed, despite a history of lower back pain, he had never

missed work before on account of his pain, save for three days in September 2003. 

His testimony that he believed himself fit for duty is corroborated by the fact that

he had received no medical attention relating to back pain for some eight months

prior to applying for a job with Icicle Seafoods. At his last appointment relating to

his back problem, Dr. Zeitak cleared him for work without restrictions. 

12. Based on the above, the court concludes that Defendants are not entitled to

restitution of the maintenance and cure payments that they have furnished to Mr.

Mohamed.

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ORDER – 9

13. The court orders Defendants to pay Mr. Mohamed maintenance in the amount of

$1,224.92, which the parties agree remains outstanding. See Dkt. # 31 at 3

(Pretrial Order). Defendants have paid all cure.

14. The court concludes that Mr. Mohamed is not entitled to pre-judgment interest

because Mr. Mohamed has failed to provide the court with any evidence from

which the court can determine the date on which he should have received his

payments from Icicle Seafoods. 

15. Pursuant to 28 U.S.C. § 1961, Mr. Mohamed is entitled to post-judgment interest

at a rate of 4.96 % to run from the date that the court enters judgment. 

Seaworthiness

16. A ship owner has an absolute duty to furnish a seaworthy ship. Ribitzki v. Canmar

Reading & Bates, Ltd. P’ship, 111 F.3d 658, 664 (9th Cir. 1997) (citing Mitchell

v. Trawler Racer, Inc., 362 U.S. 539, 549 (1960)). 

17. A vessel’s unseaworthiness “may arise from any number of circumstances,

including an insufficient number of men assigned to perform a shipboard task, or

the existence of a defective condition, however temporary, on a physical part of

the ship.” Id. (citing Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 499

(1971)). Likewise, an unsafe method of operation may constitute

unseaworthiness. Morales v. Gavelston, 370 U.S. 165, 170-71 (1962).

18. “The standard is not perfection, but reasonable fitness; not a ship that will weather

every conceivable storm or withstand every imaginable peril of the sea, but a

vessel reasonably suitable for her intended service.” Mitchell, 362 U.S. at 550.

19. In order to prevail on a seaworthiness claim, Mr. Mohamed must show that the

warranty of seaworthiness applied to him and his task, he was injured by

equipment that was either part of the ship or an appurtenant appliance, the

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ORDER – 10

equipment was not reasonably fit for its intended use, and that the unseaworthy

condition proximately caused his injury. See Ribitzki, 111 F.3d at 664. 

20. The parties do not dispute the first two elements, namely, that the warranty of

seaworthiness applied to Mr. Mohamed and his task and that his injury occurred

while he was loading pans of fish onto freezer plates aboard the F/V NORTHERN

VICTOR. 

21. The court nevertheless concludes that Mr. Mohamed’s seaworthiness claim fails

because he has not shown that his work station aboard the vessel was unfit for the

task. In sustaining his injury, Mr. Mohamed does not contend that he fell or

slipped or that the freezer plates malfunctioned. Instead, he argues that

Defendants oversaw an unseaworthy method of operation when they permitted the

crew to load shelves positioned too close to the floor. Said another way, Mr.

Mohamed contends that his work station was ergonomically flawed.

22. The court concludes that Mr. Mohamed has failed to prove that a work condition

aboard the F/V NORTHERN VICTOR was unseaworthy. Mr. Mohamed’s work

station was sufficiently manned and configured to allow Mr. Mohamed to safely

perform the task. 

23. The evidence does not indicate that Mr. Mohamed’s superiors instructed or

required him to perform the task in the manner he selected. Cf. Reyes v. Delta

Dallas Alpha Corp., 199 F.3d 626, 630 (2nd Cir. 1999) (denying summary

judgment to shipowner where vessel supervisor ordered seaman to carry 150

pound bag of ice up stairs without assistance). Indeed, Defendants present

evidence that the production manager instructed the crew to work in teams and

furnished knee pads to the crew so that they could kneel to access the lower plates.

24. The fact that Mr. Mohamed may have chosen to bend over rather than kneel does

not make the method of operation unseaworthy. See Am. Seafoods Co. v.

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ORDER – 11

Nowack, No. C01-161P, 2002 WL 31262107, at *3 (W.D. Wash. April 11, 2002)

(granting summary judgment on seaworthiness claim where seaman, tasked to

attach heavy hoses, chose to squat rather than lie down, resulting in knee injuries). 

25. The court does not find persuasive the testimony of Mr. Mohamed’s ergonomic

expert who based his assumptions about the method of operation solely on Mr.

Mohamed’s description. In its factual findings, the court accepted the safety

manager’s testimony over Mr. Mohamed’s regarding the work station set-up. 

26. Based on the above, the court concludes that Mr. Mohamed has failed to meet his

burden to show that Defendants breached their duty to provide a seaworthy vessel.

Negligence

27. The elements of a Jones Act negligence claim are duty, breach, notice, and

causation. Ribitzki 111 F.3d at 664. 

28. To recover under the Jones Act, Mr. Mohamed has the burden of establishing by a

preponderance of the evidence (1) negligence on the part of his employer, and (2)

that the negligence was a cause, however slight, of his injuries. Havens v. F/T

Polar Mist, 996 F.2d 215, 218 (9th Cir. 1993). The quantum of evidence required

to support a finding of negligence under the Jones Act is lower than that which is

required for common law negligence. Id. 

29. The court concludes that Mr. Mohamed has failed to prove that Icicle Seafoods

breached its duty to him. Icicle Seafoods exercised reasonable care that a

reasonable ship owner would exercise under the circumstances. 

30. The court declines to infer negligence on the part of Icicle Seafoods merely

because an injury occurred. 

31. Mr. Mohamed’s superiors furnished equipment that made the task reasonably safe

and assigned an adequate number of crew members to the position. There is

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ORDER – 12

nothing inherently unsafe about the freezer unit or the configuration of Mr.

Mohamed’s working station. By necessity, a vessel must make efficient use of

space. 

32. As noted previously, the production manager showed the crew how to perform the

task safely; Mr. Mohamed does not contend that his crew members would have

refused or been unable to help him had he asked. 

33. Mr. Mohamed’s injury was an unfortunate event suffered during the execution of a

routine task. Icicle Seafoods did not have a duty to caution Mr. Mohamed of the

obvious – i.e., that bending or twisting from the waist put unnecessary strain on his

back. 

ORDER

Based on the foregoing findings of fact and conclusions of law, the court orders as

follows: 

1. Mr. Mohamed shall recover unpaid maintenance in the amount of $1,224.92 plus

post-judgment interest at a rate of 4.96 % to run from the date that the court enters

judgment. 

2. The clerk shall enter judgment consistent with this order.

Dated this 2nd day of January, 2007.

A JAMES L. ROBART

United States District Judge

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