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Working Hard or Hardly Working? The Definition of “Rest” and Towing Vessel Work-Hour Limitations

By Joseph A. Devall, Jr. on Posted in Maritime Law

An often contentious issue in maritime litigation involving both personal injury and property damage is whether the wheelman in charge of a towing vessel that exceeds 26′ violated the so-called “twelve-hour rule.” According to 46 U.S.C. § 8104(h), “an individual licensed to operate a towing vessel may not work for more than 12 hours in a consecutive 24-hour period except in an emergency.” It is important for a company to make sure its wheelmen understand how investigators clock a 24-hour period, and what the courts consider “work.”

To provide guidance to summarize and clarify the work-hour limitations for licensed operators, the United States Coast Guard (“USCG”) issued a policy letter, G-MOC Policy Letter 4-00, Rev-1. According to the USCG, except in emergencies, a licensed operator of a towing vessel “may not work in excess of 12 hours in any consecutive twenty-four (24) hour period.” The Federal District Court for the Eastern District of Louisiana, interpreting the language of the statute, as well as the USCG Policy Letter, has held that in determining whether the 12-hour rule was violated “the countdown starts from the time the injury occurred, going back 24 hours.” Mercer v. Chem Carriers LLC, 790 F. Supp.2d 478, 481 (E.D. La. 2011)(relying on language, i.e. “Up to the time of the collision”, used by the U.S. Fifth Circuit Court of Appeals in Archer Daniels Midland Co. v. M/V Freeport, 909 F.2d 809, 810-11 (5th Cir. 1990)). 

Though the term “work” is not defined by statute or regulation, the term “rest” has been defined as “a period of time during which the person concerned is off duty, is not performing work (which includes administrative tasks such as chart corrections or preparation of port-entry documents), and is allowed to sleep without being interrupted….” 46 CFR § 15.1101(a)(4). Given the definition of “rest,” it might be difficult for companies to keep track of whether their wheelmen are adhering to the 12-hour rule. Most towing companies establish six hour watch-keeping policies aboard their vessels. That is, crew members work six hours on-watch and six hours off-watch. Most wheelmen record the times they go on-watch and off-watch in the vessel’s log. But what a wheelman does after his relief comes on watch could be just as important.     

Indeed, if a wheelman spends his entire six hour watch behind the ”wheel” and then spends 30 to 40 minutes instructing or helping other crewmembers and/or tankering barges, one can see where the 12-hour rule might be violated. Another consideration to take in to account is whether travel time to and from the vessel would be included in the definition of “work.” Thus, all activities of a “licensed operator” could be considered by a USCG officer investigating an incident or a court in determining whether a wheelman is compliant with the “12-hour rule.” Because a wheelman’s “work” schedule may be different than his watch schedule, it may be wise for companies to implement policies that a wheelman mark down the time period he is off-duty, i.e., at “rest.” 

Resources:
46 U.S.C. § 8104 - Watches
G-MOC Policy Letter 4-00, Rev-1

Offshore Fairness Act Proposes Extending States’ Offshore Jurisdiction

By Andrew J. Quackenbos on Posted in Offshore Jurisdiction

The offshore jurisdiction of states in the southeastern U.S. could triple in the relatively near future. Two Louisiana Congressmen, U.S. Sen. David Vitter and U.S. Rep. Bill Cassidy, recently introduced companion bills styled as the Offshore Fairness Act (OFA), which would extend the offshore jurisdictions of Louisiana, Mississippi, Alabama, Florida (partially), Georgia, South Carolina, North Carolina and Virginia to three marine leagues (nine nautical miles) from their respective coastlines. That amounts to an expansion of approximately six nautical miles from their current jurisdictional limits of approximately one marine league or three nautical miles.

At present, two states in the Union – Texas and Florida (in part) – already have offshore jurisdictions extending 3 marine leagues from their coastlines. The Supreme Court of the United States has held that, upon Texas’s admission into the Union in 1845, Congress affirmed Texas’s boundary of three marine leagues, as established by Texas’s First Congress in 1836, through the Annexation Resolution of 1845. U.S. v. States of La., Tex., Miss., Ala. & Fla., 363 U.S. 1, 80 S. Ct. 961, 4 L. Ed. 2d 1025 (1960), supplemented sub nom., U.S. v. Louisiana, 382 U.S. 288, 86 S. Ct. 419, 15 L. Ed. 2d 331 (1965). The Supreme Court similarly has held that Congress’s approval of Florida’s Constitution in 1868, which was done as part of the implementation of the Reconstruction Act of 1867, affirmed the three league boundary along Florida’s Gulf Coast as set forth in that Constitution. Id. However, Florida’s boundary on its Atlantic/eastern boundary was not defined as extending three marine leagues from its coastline in its Constitution, so its offshore jurisdiction extends only three nautical miles off of that coast.

The major hurdle the OFA will face certainly will be its impact on rights to the massive amount of revenue, actual and potential, generated from resources derived from the submerged lands between the existing and potential boundaries. In its current form, the OFA expressly excludes the Outer Continental Shelf Lands Act (43 U.S.C. § 1443, et seq.) and the Gulf of Mexico Energy Security Act of 2006 (43 U.S.C. § 1331 note; Public Law 109-432) from its reach, and it would not impact federal oil and gas leases in affected areas on the date of the transfer of jurisdiction from the federal government to the states. However, the proposed bill expressly provides that it “shall not apply to any interest in the expanded submerged land that is granted by the State after the date on which the land is conveyed to the State” by the federal government. It also provides that the states in question may exercise all sovereign powers of taxation over interests in the expanded submerged lands acquired or created after the date the lands are transferred to the states.  Whether the states or the federal government should receive the tax revenues generated by such future interests certainly will be a point of contention.

In its present form, the OFA also would grant the subject states exclusive management over the red snapper fish, the lutjuanus campechanus, within 200 miles from their coastlines consistent with the U.S.’s exclusive economic zone. At present, the National Oceanic and Atmospheric Administration (NOAA) is responsible for conducting scientifically based fishery stock assessments for the red snapper fish. However, NOAA’s assessments have recently come under increased criticism from states and special interest groups.  If passed, the states would remain in charge of red snapper management until each state’s governor certifies to the Secretary of Commerce, in writing, that NOAA’s stock assessments are accurate and based on sound science.

UPDATE: New Orleans CityBusiness has reported that on Monday, April 22, Texas and Louisiana sued to block federal fishery officials from regulating the length of the red snapper recreational fishing season in federal waters off their coasts.

Other resources:
http://www.boem.gov/Oil-and-Gas-Energy-Program/Leasing/Outer-Continental-Shelf/Index.aspx
http://www.gpo.gov/fdsys/pkg/BILLS-113hr1430ih/pdf/BILLS-113hr1430ih.pdf (House bill)
http://www.gpo.gov/fdsys/pkg/BILLS-113s681is/pdf/BILLS-113s681is.pdf (Senate bill)

Termination for Misconduct Does Not Reopen LHWCA Claim, Fifth Circuit Follows Fourth Circuit in Deciding

By Douglas P. Matthews on Posted in LHWCA

The Fifth Circuit has followed the Fourth Circuit’s lead in deciding today that an employee’s termination for misconduct will not reopen a disability claim under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).

The United States Court of Appeals for the Fifth Circuit in an unpublished opinion issued on March 19, 2013, addressed the employer’s burden under the LHWCA to show suitable alternative employment where an employee is left with a residual disability to a nonscheduled portion of his body after a work-related injury (Cox v. Dir., OWCP, et al., No. 12-60180). In rebuffing the claimant’s appeal of the denial of his benefits by the Administrative Law Judge, the court reiterated its holding in Darby v. Ingalls Shipbuilding, Inc., 99F.3d 685 (5th Cir. 1996), that an employer can discharge its burden of showing suitable employment when an injured employee is disabled from returning to his pre-injury job by offering a different but suitable job at his current place of work. The court also cited Fourth Circuit case law, Brooks v. Dir, OWCP, 2F.3d 64,65 (4th Cir. 1993), that if the claimant thereafter losses the substitute employment due to his own misconduct, any subsequent loss in his wage earning capacity is not compensable under the Act as it does not result from a work-related accident.

In this instance the employer had sent a written offer of a job suited to the claimant’s limitation to medium duty work with restrictions on lifting, pushing and pulling to both the claimant and his attorney by certified mail. Although the claimant failed to claim the certified letter, it was delivered to his attorney. When the claimant failed to report to work as required in the offer he was terminated in accordance with the employer’s policy and the applicable union contract.

I’ll Take “Not a Vessel” for $600, Alex: What Is a Tension Leg Platform?

By James D. Bercaw on Posted in Jones Act, LHWCA, Offshore Oil

In the wake of the revisited tests of vessel status by the Supreme Court in Stewart vs. Dutra Construction Company, 543 U.S. 481 (2005) and Lozman v. City of Riviera Beach, Fla., 133 S.Ct. 735 (2013), it remains to be seen whether floating oil and gas production structures, such as SPARS and tension leg platforms (“TLP”), retained their non-vessel status. In Mooney v. W&T Offshore, Inc., No. 2:12-cv-969 (E.D. La. Mar. 3, 2013), District Judge Lance M. Africk recently concluded that the MATTERHORN SEASTAR, a TLP secured to the Outer Continental Shelf off the coast of Louisiana, was not a vessel as a matter of law. The plaintiff had filed suit against W&T Offshore, Inc., the owner and operator of the MATTERHORN SEASTAR, under the Jones Act, the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), and general maritime law for alleged personal injuries he claimed to have received while working on the MATTERHORN SEASTAR. The plaintiff’s potential recovery against W&T under the foregoing statutes and general maritime law depended on whether the MATTERHORN SEASTAR is a vessel. 

The MATTERHORN SEASTAR is a floating oil and gas production structure that has been secured to the seabed since 2003 by six mooring tendons, seven casing production risers, and two export pipelines, and it will remain in that moored location until at least 2020. Its buoyant hull had been towed to the moored location, where it was secured to the seabed by the mooring tendons, which tendons in turn were affixed to suction pilings driven hundreds of feet below the seafloor. Subsequently, the oil and gas production and processing equipment that comprised the top-sides of the TLP was installed on top of the hull. Thereafter, the production risers and pipelines were connected to the top-sides equipment. It would take W&T several months of preparation and activities, including the removal of the topsides from the hull, before the hull could be ready for towage away from the moored location. Lastly, the MATTERHORN SEASTAR has no system of self-propulsion, no raked bow, and is not intended to be towed or moved except as part of the initial positioning and ultimate removal of the hull from its moored location. 

Under the Rules of Construction Act, 1 U.S.C. § 3, as expanded by the Stewart and Lozman decisions, the current tests for whether a structure qualifies as a vessel is whether the structure is practically capable of being used as a means of transportation on the water, including whether a reasonable observer would consider the structure to be designed to a practical degree for carrying people or things over water. Based on the undisputed evidence, Judge Africk concluded that no reasonable observer would consider the MATTERHORN SEASTAR to be designed to a practical degree for carrying people or things over water. Moreover, it was only theoretically possible, and thus not practically possible, for the TLP to participate in maritime transportation. As a result, the MATTERHORN SEASTAR was not a vessel, and the plaintiff’s claims against W&T under the Jones Act, the LHWCA, and general maritime law were dismissed with prejudice. King, Krebs & Jurgens, including the author, represented W&T in its successful motion for partial summary judgment.

Jones Act Status Remains Unavailable on SPARS

By Douglas P. Matthews on Posted in Jones Act, Offshore Oil

This is not a vessel.

Jones Act status remains unavailable on SPAR Platforms, a type of deepwater floating oil drilling and production facility used in the offshore petroleum industry. While, as noted in the recent blog by Joseph Devall, Jr., the Supreme Court of the United States (SCOTUS) contemplates a further “clarification” of the term “vessel,” the Fifth Circuit has reiterated that, even in light of the previous decision of SCOTUS in Stewart vs. Dutra Construction Company, 543 U.S. 481, 125 S.Ct. 1118, 160 L.Ed.2d 932 (2005), addressing the definition of “vessel,” SPAR platforms that are practically immovable continue to not be vessels for Jones Act purposes.

The Fifth Circuit in Fields vs. Pool, 182 F.3d 353 (5thCir. 1999), in a case that was then one of first impression, evaluated the characteristics of SPAR platforms and determined they were not vessels due to the fact that they:

  1. were designed to be in place for the foreseeable future;
  2. were secured to the sea floor by elaborate systems insuring that movement would be difficult and a costly undertaking; and,
  3. had a tightly constrained area of movement on the sea surface limited by its anchor pattern to incidental movement.

Subsequent to the Fifth Circuit decision in Fields, SCOTUS in Stewart defined the term “vessel” for the maritime industry indicating that a vessel was “any watercraft practically capable of maritime transportation, regardless of its primary purpose or state of transit at a particular moment.” The court, however, went on to state that “a watercraft is not ‘capable of being used for maritime transfer’ in any meaningful sense if it has been permanently moored or otherwise rendered practically incapable of transportation or movement.”

A number of Federal district courts in Louisiana and Texas, subsequent to the Stewart decision, have been called upon to determine whether SPAR platforms should be considered vessels under the defining opinion in Stewart. All of the district courts that met this issue, but for one, felt that the Stuart decision did not overrule the earlier Fifth Circuit’s opinion in Fields.

Most recently, in Mendez vs. Anadarko, 466 Fed.Appx. 316 (5th Cir. 2012) (unpublished),  the Fifth Circuit again specifically addressed the status of SPAR platforms, but this time in light of the Supreme Court decision in Stewart and has reiterated its previous holding, finding that SPAR platforms do not qualify as vessels for Jones Act purposes. Applying this decision, Magistrate Hill, in the U.S. District Court for the Western District of Louisiana, Lafayette Division has recently, in Hefren vs. Murphy Exploration and Production Company, found that the Front Runner, a SPAR platform, was not a vessel for Jones Act purposes.

BOEM Five Year Outer Continental Shelf (OCS) Oil and Gas Leasing Program Under Attack

By Andrew J. Quackenbos on Posted in Energy, Offshore Oil

Bureau of Ocean Energy ManagementThe Center for Sustainable Economy, a non-profit public interest consulting firm, filed a lawsuit today against the Bureau of Ocean Energy Management (BOEM) in an attempt to halt that agency’s first approved five-year Outer Continental Shelf (OCS) Oil and Gas Leasing Program since the BP oil spill. The Program, which establishes a schedule for 2012-2017 to be used as a basis for considering where and when oil and gas leasing might be appropriate in both the Gulf of Mexico and Alaska, received final approval from U.S. Department of the Interior on August 27, 2012.

The Center for Sustainable Economy contends that the BOEM’s implementation of the Program was a hasty, uniformed, and illegal course of action. In a press release, the Center stated that “[i]ncomplete and flawed economic analysis led BOEM to rush ahead with new offshore leases that may not be economically justified in violation of the National Environmental Policy Act, Outer Continental Shelf Lands Act, and Administrative Procedure Act.”

Industry leaders and GOP members on Capitol Hill certainly are opposed to the lawsuit. E2-Wire, an energy and environmental blog based in Washington D.C., reports that “a number of industry groups—including the American Petroleum Institute and the International Association of Drilling Contractors—have also petitioned the appeals court to intervene in the case on Interior’s side, noting their interests are at stake in the case.” While they believe the Program is too modest and should have made more Outer Continental Shelf areas available for drilling and energy exploration, they recognize that the Center’s success in the litigation would be another setback for an industry still coping with the aftermath of the BP oil spill.

The lawsuit was filed in the United States Court of Appeals for the District of Columbia.

Legal Definition of a Vessel: That Certain Unnamed Gray, Two-Story Vessel Before S.C.O.T.U.S. — Part 2

By Joseph A. Devall, Jr. on Posted in Ports & Cargo Shipping
Supreme Court of the United States

The Supreme Court of the United States may soon be deciding the definition of a vessel.

The very question of what makes a structure a “vessel”  under Section 3 of the Rules of Construction Act, 1 U.S.C. §3 is before the United States Supreme Court in City of Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, 649 F. 3d 1259 (11th Cir. 2011). In Part 1 of this blog post, we looked at the position of the owner of the alleged vessel, who argued that use and intention should be considered and that a watercraft like his floating house should not be considered a vessel. The Eleventh Circuit, however, ruled otherwise.

In determining that the floating house was a vessel, the Eleventh Circuit distinguished and disagreed with jurisprudence from the Fifth and Seventh Circuits. According to the Eleventh Circuit, the Fifth and Seventh Circuits “focus on the intent of the ship owner rather than whether the boat has been ‘rendered practically incapable of transportation or movement.’” Compare Board of Commissioners of the Orleans Levee District v. M/V Belle of Orleans, 535 F.3d 1299 (11th Cir. 2008) with Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560 (5th Cir. 1995); Tagliere v. Harrah’s Ill. Corp., 445 F.3d 1012 (7th Cir. 2006). The Eleventh Circuit submitted that by injecting the owner’s intention into determining whether a floating structure was a vessel, the Fifth and Seventh Circuits have deviated from the United States Supreme Court’s decision in Stewart v. Dutra Construction Company, 543 U.S. 481 (2005).

In the amicus briefs filed by the National Marine Bankers Association and numerous maritime plaintiff attorneys, it was argued that the Eleventh Circuit’s decision should be upheld, and they too criticized the jurisprudence of the Fifth and Seventh Circuits. As argued by National Marine Bankers Association, under the Fifth and Seventh Circuits’ jurisprudence, “a once-valid marine security could at a later date be adversely affected because the craft is no longer deemed a vessel” by its owner, which would create uncertainty for lenders and banks. The plaintiff’s attorneys also supported the Eleventh Circuit’s decision as it potentially could expand admiralty jurisdiction to include, among other things, floating casinos, and other floating offshore installations.

The outcome of this case may have far reaching implications likely broader than those briefed, including whether the courts would revisit whether certain floating offshore installations used in the petroleum industry are vessels. That is, if the matter is decided at all. The U.S. Solicitor General has argued that the case is moot as the floating houseboat at issue has already been destroyed, and the Supreme Court has requested the parties further brief that issue. Stay tuned.

The Fifth Circuit Restates Three Duties Vessel Owners Owe Longshore Employees

By James D. Bercaw on Posted in LHWCA, Ports & Cargo Shipping

Under Section 905(b) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), a vessel owner owes three duties to longshore employees. In October 2012, the Fifth Circuit granted a summary judgment dismissing serious personal injury claims a cargo supervisor filed under LHWCA because the defendants had not breached any of these three duties. In doing so, the Court restated the law applicable to the claims of discharging stevedores based on conditions of the cargo stow, providing a legal primer on the recurring issues concerning the vessel owner’s duties under these circumstances. 

In Sobrino-Barrera v. Anderson Shipping Co., No. 11-20826 (5th Cir. Oct. 23, 2012), a cargo supervisor employed by stevedore Gulf Stream Marine was injured during cargo discharge operations from the M/V GRETA. The injury was allegedly caused by the faulty stowage of the cargo of steel pipes. This raised the question of whether the vessel owner breached any of its duties to Sobrino-Barrera, the injured longshore worker. 

It is settled that a vessel owner owes longshore employees three duties under LHWCA § 905(b): (1) a duty to turn over the vessel to the stevedore in a reasonably safe condition or to warn the stevedore of any hidden dangers of the vessel or its equipment; (2) a duty of reasonable care to prevent injuries to longshore employees in work areas under the active control of the vessel; and (3) a limited duty to intervene in the stevedore’s operations. The summary judgment evidence on each of the three duties is briefly discussed below. 

As an initial matter, the Court concluded that the GRETA’s cargo at the discharge port was an open and obvious condition based on the deposition testimony of Sobrino-Barrera and a fellow employee. Because the “turnover duty” only implicates hidden (non-obvious) defects in the ship and its equipment, no “turnover duty” was owed.

The Court also rejected Sobrino-Barrera’s argument that the ship’s participation in the cargo plan at the load port rendered the cargo within the vessel’s active control at the discharge port. “Involvement in the cargo plan does not constitute active control.”

Lastly, the Court concluded that the vessel interests had no duty to intervene in the cargo discharge operations. The duty to intervene is extremely limited and arises only after the vessel has both “actual knowledge” of a dangerous condition and “actual knowledge” that the stevedore in the exercise of “obviously improvident judgment has failed to correct that dangerous condition.” There was no evidence that the vessel interests knew that the cargo presented a danger to Sobrino-Barrera and his crew. Moreover, Sobrino-Barrera’s deposition testimony indicated that prior to his accident the stevedore had followed its normal and customary procedures in discharging the cargo. Accordingly, there was no duty to intervene on the part of the vessel.

Legal Definition of a Vessel: That Certain Unnamed Gray, Two-Story Vessel Before S.C.O.T.U.S. — Part 1

By Joseph A. Devall, Jr. on Posted in Ports & Cargo Shipping

A feisty dachsund and its owner, Fane Lozman, have stirred up troubled waters regarding the definition of a “vessel” in City of Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, 649 F. 3d 1259 (11th Cir. 2011). That case, which is now before the 2012–2013 session of the United States Supreme Court, started out with the City of Riviera Beach, Florida, attempting to evict Mr. Lozman and his floating home from the city’s marina because, among other things, he refused to keep his dog—a small Dachshund—muzzled.

The case may have far reaching implications. It has attracted interest and amicus briefs from the federal government, numerous floating home owners and their associations, lawyers, law professors, the Marine Bankers Association, carpenters, and owners and operators of riverboat casinos, all of whom claim they will be affected by the Supreme Court’s decision. In a two-part blog post, Offshore Winds will look at both sides of this argument over the definition of “vessel.”

The City of Riviera Beach claims Mr. Lozman’s structure is a vessel and brought an in rem proceeding against it. Mr. Lozman disputed that claim. The position of Mr. Lozman, along with the American Gaming Association, the carpenters, certain lawyers, and the floating homeowners, was that in determining whether a structure was a “vessel” under Section 3 of the Rules of Construction Act, 1 U.S.C. §3, the Court must take into account practical considerations such as historical use, its current use, and its reasonable intended use for the future. The matter is being watched closely within the Fifth and Eleventh Circuits, where employees of semi-permanently moored riverboat casinos are subject to workmen’s compensation laws, not federal maritime law. Additionally, floating homeowners argue that expanding the definition of vessel to include their floating homes would subject them to new federal laws, including maritime liens, which would frustrate certain local regulations. They argue that practically their homes are a mere extension of the land, and should be treated as such in the courts.

The United States Court of Appeals for the Eleventh Circuit agreed with the City of Riviera, disagreeing with jurisprudence from the Fifth and Seventh Circuits defining what is a vessel. In Part 2, we will look at why that Court held Mr. Lozman’s floating home was a vessel.