Striding the Quarterdeck

Following on this week’s series regarding the new batch of four USCG-BSEE MOUs, this post will discuss the third, concerning incident reporting.

Hand in glove with the civil penalties and SEMS/SMS MOUs (the latter to be discussed in the last post in this series) – each of which focuses on specifically divvying up the shared regulatory spaces between the USCG and BSEE – the agencies have made an effort in the third of the January 2017 MOUs to formalize the in-the-field application of these newly divvied-up responsibilities by formalizing each agency’s incident investigation responsibilities.  read more…

Following on this week’s series regarding the new batch of four USCG-BSEE MOUs, this post will discuss the second, concerning oil spill planning, preparedness and response.

The second of the January 17, 2017 MOUs concerns oil spill response on the OCS, and in this regard supersedes a prior MOU entered in April 2012.  That said, the January 17, 2017 more or less tracks the April 2012 MOU, with various updates based on the agencies’ experiences since 2012 and with the most substantial updates appearing in a newly added section regarding “Oil Spill After Action Reviews.”

This PPP MOU sets up (yet another) matrix defining which agency has spill response authority for certain types of OCS assets (i.e. fixed v. floating facilities, MODUs, FPSOs, etc.) and for what phase of the response (i.e. planning, preparedness, response, source control). read more…

For the past few years, this blog has attempted to chart the fraught and developing regulatory overlap between the United States Coast Guard (USCG) and Bureau of Environmental Enforcement (BSEE) in the fallout from the DEEPWATER HORIZON disaster and ensuing  ramped up regulatory action on the Outer Continental Shelf (OCS).  As part of these increased regulatory enforcement efforts, the USCG and BSEE entered a series of Memoranda of Understanding (MOUs) in the months and years following the April 2010 DEEPWATER HORIZON blowout in an attempt to circumscribe each agency’s distinct sphere of authority.  These MOUs, however, left many gray areas and blurred lines as to whether one entity – or both – may hold sway on certain enforcement issues, none of which is good for a technologically complex and constantly evolving industry that requires precision in order to ensure compliance.

As part of the continued effort toward the (arguably) “white whale” goal of establishing a “One Gulf, One Standard” approach to regulating the OCS, the USCG and BSEE recently entered four additional MOUs (effective January 10, 2017) in an effort to “increase collaboration, clarify responsibilities, and streamline information sharing.”  This post will be followed by a series in the coming days that will provide a brief discussion of each of these MOUs. read more…

“And there’s a mighty difference between a living thump and a dead thump.”
Moby Dick, Herman Melville

In a dramatic reversal of a prior and equally dramatic, watershed administrative decision of the Interior Bureau of Land Appeals (IBLA) upholding the Bureau of Safety and Environmental Enforcement’s (BSEE) regulatory jurisdiction over offshore contractors on the Outer Continental Shelf, the United States District Court for the Western District of Louisiana has overturned the IBLA’s ruling and stripped BSEE of that jurisdiction.  Island Operating Co. v. Jewell et al., Case No. 16-145 (W.D. La. Dec. 23, 2016).  Thus, under the Island Operating decision, BSEE may no longer wield what this blog has previously described as “the universal thump [it has previously] passed around” on offshore contractors; it has been rendered, at least for now, a “dead thump.” read more…

– Moby Dick, Or The Whale, Herman Melville

The past eighteen to twenty-four months have seen a tectonic shift of focus (as well as a plethora of industry-generated white papers) by virtually every governmental regulatory entity, NGO, and industry group in the maritime world (up to and including the President of the United States) to the amorphous and dynamic issue of maritime “cybersecurity,” a term that covers a large waterfront of potential threats. read more…

In an eminently reasonable, but apparently (surprisingly) res nova decision, the United States Fifth Circuit Court of Appeal has clarified that the maritime collateral source rule does not allow for recovery of medical amounts billed but later written down by the medical providers. Deperrodil v. Bozovic Marine, Inc., —F.3d —, 2016 WL 6810728 (5th Cir. Nov. 17, 2016). read more…

In 2006, the Fifth Circuit issued a landmark controversial opinion in Texaco Exploration & Production, Inc. v. AmClyde Engineered Products Co., 448 F.3d 760, 770 (5th Cir.) amended on reh’g, 453 F.3d 652 (5th Cir. 2006). The case concerned the loss of the 3,605 ton, $70 million South Deck Module of Texaco’s compliant tower Petronius platform (then the tallest man-made structure in the world, from seafloor to above-surface platform height) due to failure of a wire rope component during transfer of the module from a deck barge via a barge-mounted crane. Despite the fact that the operation involved the use of two vessels and the crane-assisted movement of the South Deck Module over water in the middle of the Gulf of Mexico, the Fifth Circuit held that admiralty tort jurisdiction did not apply, and that the incident fell within the exclusive jurisdiction of the Outer Continental Shelf Lands Act (“OCSLA”). Accordingly, the case was remanded for a jury trial (after a prior improvidently conducted bench trial in admiralty) pursuant to the law of Alabama (the state adjacent to the platform site), instead of general maritime law. read more…

The United States Coast Guard Rear Admiral Paul Thomas recently penned an article for the Marine News magazine, February 2016 edition, highlighting the Coast Guard’s “priorities” for 2016. The article is available at the Coast Guard’s Maritime Commons blog, as well as at the Marine News website. read more…

As previously reported on Striding the Quarterdeck, district courts within the federal Fifth Circuit had split over recent years as to whether the Texas and Louisiana Oilfield Anti-Indemnity Acts (TOAIA, Tex. Civ. Prac. & Rem. Code §127.001 et seq., and LOAIA, La. Rev. Stat. §9:2780) applied to platform decommissioning work. Both statutes in general prohibit indemnity and additional insured agreements in contracts for work “pertaining to a well,” a broadly worded operative clause that has been interpreted to include everything from catering work on production platforms to shoreside fabrication of a platform that would eventually be used at a producing well. read more…

The classification of the constituents of a chaos, nothing less is here essayed.

-Herman Melville, Moby Dick

As previously reported on Striding the Quarterdeck, the post-Macondo overhaul of the Minerals Management Service (MMS) and the scope and substance of its regulatory reach resulted in the Bureau of Safety and Environmental Enforcement (BSEE, the MMS’s successor agency) asserting unprecedented civil penalty jurisdiction over offshore contractors, after decades of espousing the policy and practice of enforcing such penalties solely against lease holders and operators. Now, after years of industry uncertainty, seemingly contradictory and confused policy statements (official and informal), and despite the lack of any actual rulemaking in this area to date, the veritable “chaos” around this issue has been “essayed” and determined by the Interior Board of Land Appeals (IBLA, the final administrative appellate body within the Department of the Interior within which BSEE is situated) in a landmark administrative opinion determining once and for all – pending further potential judicial review in the federal courts – that BSEE has unfettered jurisdiction to assess civil penalties against any contractors performing work on the Outer Continental Shelf. See Island Operating Co., 186 I.B.L.A. 199 (Oct. 5, 2015). read more…