Striding the Quarterdeck

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…

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 semi–regular 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…

In two issues of first impression, the 5th Circuit Court of Appeals read the complete defense provisions for oil spills under the Oil Pollution Act (“OPA”) to strictly construe the defenses and make them only very narrowly available. read more…

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…

In a chillingly apropos follow-on to the mid-summer global Petya and WannaCry cyber/ransomware attacks, which crippled businesses and government interests around the world, October has been dubbed “National Cyber Security Awareness Month.”  read more…

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…

Following up on its landmark 2014 decision in Coffin v. Blessey Marine Servs., Inc., 771 F.3d 276 (5th Cir. 2014), previously reported here on Striding the Quarterdeck, which concerned the applicability to tankerman of the seaman exclusion to the overtime wage provisions of the Fair Labor Standards Act (29 U.S.C. §§201-21, “FLSA”), the Fifth Circuit has held in Halle v. Galliano Marine Serv., L.L.C., — F.3d —, 2017 WL 1399697 (5th Cir. Apr. 19, 2017) that remotely operated vehicle (ROV) technicians aboard offshore oilfield support vessels are not seaman for purposes of the FLSA, and thus are entitled to overtime pay as provided in the FLSA. Unlike the result in Coffin, in which tankerman (crew members responsible/trained for loading/unloading of liquid cargoes from tank barges) were held to be FLSA seaman and thus exempt from from the overtime coverage of the FLSA, the ROV technicians in Halle were held to be non-seaman and thus entitled to overtime. read more…

Once your comrades have rowed you beyond those creatures I cannot advise you of the best course to take. I will tell you the choice, but you must decide. One leads to sheer cliffs, against which green-eyed Amphitrite hurls her vast roaring breakers, the blessed gods call them the Wandering Rocks. Not even birds can pass between them unscathed, not even the timorous rock-doves that bring ambrosia to Father Zeus. The slippery rock always takes one, and Zeus must send another to complete their number. Crews that reach the rocks can never escape, instead ships’ timbers and human corpses are tossed by the waves or in gushers of cruel fire.

-Homer, Odyssey Book XII, trans. A.S. Kline read more…

In a sweeping move that has been widely and vociferously praised by supporters and passionately decried by opponents, the Customs and Border Patrol Agency (CBP) on the second-to-last day of the Obama administration’s tenure, issued a “General Notice” in its weekly “Customs Bulletins and Decisions” publication (dated January 18, 2017) proposing the in globo revocation of prior CBP (and/or its predecessor entities’) rulings – some specified in the Notice, others merely generally referenced – issued over the last nearly forty years concerning the coastwise carriage of oilfield equipment/materials (i.e. from U.S. ports to coastwise points on the Outer Continental Shelf (OCS)) by foreign-flagged, non-Jones Act/non-coastwise eligible vessels in the Gulf of Mexico oilfield. This proposed change, which hinges on whether such equipment/materials qualify as “vessel equipment” under applicable regulations and prior CBP rulings, would affect what has developed over the years into a niche fleet of specialized foreign flag vessels used in the Gulf of Mexico for deepsea and subsea construction and maintenance projects – i.e. pipelay vessels, heavy-lift vessels, and IRM (inspection/repair/maintenance) vessels used for construction/decommissioning of offshore facilities, laying/maintenance of pipelines, and similar deep-water projects. read more…

Following on this week’s series regarding the new batch of four USCG-BSEE MOUs, this post will discuss the fourth, concerning safety systems.

Perhaps one of the most confounding and critical areas of overlap between the USCG and BSEE has been in the competing/complementary Safety and Environmental Management System (SEMS) regulations issued by BSEE at 30 C.F.R. Subchapter B, Subpart S and the USCG’s general vessel safety regulations throughout 46 C.F.R. and – more particularly – the Safety Management System regulations issued at 33 C.F.R. Subchapter F, which apply to many vessels operating on the OCS (pursuant to 46 U.S.C. §§3201 et seq.).  Whether a vessel operator might have to comply with both BSEE’s SEMS regulations and/or the USCG’s separate (potentially conflicting) safety regulations and/or SMS requirements has always presented a potential compliance conundrum.  In fact, the USCG has even formally suggested (via a notice of proposed rulemaking) simply adopting BSEE’s SEMS regulations for all “vessels engaged in OCS activities” in an effort to avoid this conundrum. read more…