Striding the Quarterdeck

Covering the most recent developments in national maritime jurisprudence and regulatory action, with a focus on issues that affect the inland and offshore industries in and around the Gulf of Mexico.

OSHA on the OCS? Fifth Circuit Affirms Preemption of OSHA Regulations on OCS MODU

The 5th Circuit, in Thomas v. Hercules Offshore Services, L.L.C.[1], concluded per curiam that the Occupational Safety and Health Administration (“OSHA”) safe workplace regulations had been preempted by the United States Coast Guard (“USCG”) regulations for injuries occurring on the Outer Continental Shelf (“OCS”) on a foreign-flagged jack-up drilling rig (or as the opinion described the rig, a “mobile offshore drilling unit” (“MODU”) in the parlance of the USCG’s OCS regulations at 33 CFR Subchapter N and 46 CFR Subchapter I-A).  As a result, the owners of the MODU were not negligent for injuries sustained by a galley hand who tripped and fell over a raised doorsill that was constructed in compliance with the USCG’s specific regulations for accommodation space specifications (46 C.F.R. §§108.197, 205).[2] read more…

Keeled Hulls Split At Sea – The Fraught Waters Of General Maritime Law Punitive Damages, Split Among The Circuits

Steady, helmsman! Steady. This is the sort of weather when brave hearts snap ashore, and keeled hulls split at sea. Moby Dick, Herman Melville, Chap. XL

Since the Supreme Court’s (Justice Thomas’s) landmark decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009) holding that punitive damages are available in a seaman’s general maritime law (GML) cause of action for willful failure to pay maintenance and cure, several pitched battles have been raging around the country on an issue expressly left unanswered in Townsend (see 557 U.S. at 424, n.11): whether punitive damages are recoverable by a seaman in the separate and independent GML cause of action for unseaworthiness. read more…

Hercules Ascendant? A New Fifth Circuit Personal Jurisdiction Decision, and a Gasp of Breath from a Seemingly Dead Letter

The Fifth Circuit’s recent decision in Sangha v. Navig8 Shipmanagement Private Limited,  No. 17-20093, — F.3d —-, 2018 WL 706518  (Feb 5, 2009) has continued the recent jurisprudential renaissance of personal jurisdiction decisions in a maritime ruling that has implications for jurisdictional disputes in all substantive areas.  read more…

***UPDATE*** – Fifth Circuit Dismisses Last Remaining Vestige Of The BSEE Contractor Jurisdiction Litigation

As previously reported here, the Fifth Circuit in September ruled that the Bureau of Safety and Environmental Enforcement (BSEE) has no criminal jurisdiction under its current regulations over offshore contractors (USA v. Moss, 872 F.3d 304 (5th Cir. 2017)). A companion case regarding BSEE’s civil jurisdiction over offshore contractors (Island Operating Co. v. Jewell et al., Case No. 16-145 (W.D. La. Dec. 23, 2016)) technically remained pending on appeal before the Fifth Circuit after the court’s rejection of BSEE’s criminal jurisdiction. As this blog noted, however, the Moss court’s opinion was very broad and “expressly acknowledged that while it was only squarely faced with the question of whether BSEE’s criminal indictments in the case were valid, this question necessarily implicated whether BSEE’s regulations even applied at all (criminally or civilly) to offshore contractors.” Thus, while the civil jurisdiction case in Island Operating technically remained pending, the writing was essentially on the wall. read more…

An Opinion Worth Its Salt – Fifth Circuit En Banc Simplifies Rule For Identifying Maritime Contracts In The Oilfield

The Fifth Circuit en banc (In re Larry Doiron, Inc., 2018 WL 316862, at *7 (5th Cir. Jan. 8, 2018)) has handed down an historic re-working of the test for determining whether oilfield contracts are maritime or non-maritime in nature. Harkening back to the United States Supreme Court’s eminently practical, simple maritime contract test in Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 22 (2004) that considers whether “the situation presented … [has] a genuinely salty flavor,” the en banc decision in In Re Larry Doiron, Inc. simplifies decades’ worth of confusing and often inconsistent jurisprudence to give a more streamlined and hopefully predictable rule for determining whether oilfield contracts are maritime or not. read more…

Fifth Circuit Addresses Scindia Duties on Summary Judgment and the West Caveat Sending Case Back to District Court

In another recent case on the Scindia duties,[1] the Fifth Circuit Court of Appeals in Manson Gulf, L.L.C. v. Modern American Recycling Service, Inc.,[2] remanded a case dismissed by the District Court for the Eastern District of Louisiana on summary judgment against the vessel owner on the grounds that there was a material dispute of fact as to whether a hole in a decommissioned oil platform (and decommissioning work has become a semiregular theme on this blog) was open and obvious or a danger that a “reasonably competent stevedore” should have anticipated. Notably the Court also addressed whether the West exception for independent contractors injured by the conditions/defects they were hired to repair or inspect applied to a stevedore retained to remove an oilfield structure for scrap metal. The Court found that the narrow West exceptions do not apply in this case. read more…

Naquin on the Door of a Circuit Split? Second Circuit Suggests Emerging Split from the Fifth Circuit Regarding Jones Act Seaman Status for Essentially Land-Based Employees

A circuit split may be emerging after the Second Circuit Court of Appeals’ unanimous decision in Matter of Buchanan Marine, L.P., – F.3d –, No. 16-1092 (2d Cir. Oct. 27, 2017) (Kearse, Cabranes, Chin, J.) affirming a New York district court’s denial of seaman status for a barge worker who inspected and repaired moored barges used to transport quarried rock from a processing facility down the Hudson River. read more…

Fifth Circuit Sounds The Death Knell For BSEE Jurisdiction Over Offshore Contractors

Since October 2011, when the Bureau of Safety and Environmental Enforcement (BSEE) issued its first-ever Incidents of Non-Compliance (INCs) against offshore contractors (Halliburton and Transocean) in the wake of the DEEPWATER HORIZON blowout, the offshore industry and BSEE have been engaged in a literal “war of words” over a simple question of statutory and regulatory construction: does BSEE’s authority under the Outer Continental Shelf Lands Act (OCSLA) and the regulations promulgated thereunder extend to offshore contractors?  This blog has followed the pitched battles along the way, from the first volley of BSEE’s initial issuance of the INCs to Halliburton/Transocean, through its continuing sorties under its self-proclaimed jurisdiction over contractors across the OCS, and (most recently) its checkered retreat into the appellate court after two different district courts rejected its positions and sided with offshore contractors. read more…

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STRIDING THE QUARTERDECK

"The Chancellor is no longer fixed to the woolsack. He may stride the quarter-deck of maritime jurisprudence and, in the role of admiralty judge, dispence, as would his landlocked brother, that which equity and good conscience impels."

- Compania Anonima Venezdolana De Navegacion v. A. J. Perez Exp. Co., 303 F.2d 692, 699 (5th Cir. 1692).