Bouchard Transportation and its Barge B 255, part 2; retaliatory discharge of a seaman can be costly
By way of background, attentive readers may recall that, in October of 2017, a large fuel barge caught fire and suddenly exploded three miles offshore Port Aransas, Texas, killing 2 crew members who were standing on the bow of the barge. The barge B #255, 488 feet long and carrying 140,000 barrels of crude oil, was made up to the tug BUSTER BOUCHARD. Both barge and tug were preparing to deliver the barge to a refinery in the Port of Corpus Christi, Texas. Two crewmembers, Zach Jackson and Du’jour Vanterpool, were killed almost instantly and thrown into the water. Jackson’s body was never recovered.
An extensive US Coast Guard hearing occurred in Houston over 9 days in July of 2018. 23 witnesses testified, including several Bouchard employees. One of those employees, Morgan Jackson, a crew member on another Broussard oil barge, is the brother of Zach Jackson, who was killed aboard the B 255. The Coast Guard investigators questioned him and several other Bouchard employees about gas leaks aboard various barges, insufficient repair of various barges, unsafe conditions, and insufficient concern over safety generally. Morgan Jackson earlier had cooperated with Coast Guard investigators, who questioned him beginning several days after his brother’s death. Bouchard management fired him three months after the explosion. In early January 2018, Morgan Jackson asked about when he could return to work. Bouchard gave him no reason for his January 31, 2018, termination.
In an unusual development, Broussard management was so concerned about the US Coast Guard investigation and testimony that it filed an emergency motion to temporarily stop the Coast Guard’s investigation hearing. That motion was presented to Houston federal judge Gray Miller, a former maritime lawyer, but he did not order the hearing stopped.
In December 2019 the Occupational Safety & Health Administration (“OSHA”) announced that its Whistleblower Protection Program investigators had concluded that Bouchard Transportation Company and its officers violated the whistleblower protection provisions of the Seaman’s Protection Act (“SPA”), 46. U.S.C Section 2114, when it retaliated against Mr. Jackson, who claimed he was fired because he had cooperated with Coast Guard investigators and reported other safety concerns to them. Under the SBA, reporting violations of maritime safety laws and regulations, cooperating with Coast Guard safety investigations, or furnishing information to the Coast Guard about facts related to a marine casualty resulting in death, are considered “protected activities”. If a seaman is retaliated against for engaging in such protective activities, OSHA can conduct whistleblower investigations, conclude that the SBA has been violated, and order damages.
Here, the OSHA whistleblower protection program investigators concluded that retaliation in violation of the SPA had occurred. It ordered Broussard to pay its seaman employee the following damages:
- all back pay, with interest, plus additional compensatory damages for losses to his 401(K) account;
- An additional 2 years of lost pay, in lieu of reinstatement;
- An award of $50,000 for emotional distress, pain and suffering, mental anguish and loss of reputation, all resulting from Bouchard’s adverse employment action; plus
- $200,000 in punitive damages for Bouchard’s and its officers’ reckless disregard for the law, callous indifference to the seaman’s rights under the SPA, and for egregious conduct.
OSHA also ordered Bouchard transportation to:
- refrain from making any adverse statements concerning the seaman’s termination or any adverse statements about the facts or issues of the case; and
- to train its managers and employees about seamen’s rights under the SPA, without fear of retaliation, and to provide proof that such training had been provided within 60 days from receipt of OSHA’s preliminary order.
In commenting on the matter, OSHA regional administrator Richard Mendelson stated: “this case revealed troubling safety violations in the wake of a seaman’s death and it exemplifies how a culture of intimidation can have disastrous results for seamen. Employers and vessel owners must know and respect that the Seaman’s Protection Act safeguards seamen’s cooperation with US Coast Guard and other safety investigations and the reporting of safety concerns. “
Seaman’s Protection Act, 46 U.S.C. §2114 (SPA)
- 2114. Protection of seaman against discrimination.
(1) A person may not discharge or in any manner discriminate against a seaman because–
(A) the seaman in good faith has reported or is about to report to the Coast Guard or other appropriate Federal agency or department that the seaman believes that a violation of a maritime safety law or regulation prescribed under that law or regulation has occurred;
(B) the seaman has refused to perform duties ordered by the seaman’s employer because the seaman has a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public;
(C) the seaman testified in a proceeding brought to enforce a maritime safety law or regulation prescribed under that law;
(D) the seaman notified, or attempted to notify, the vessel owner or the Secretary of a work-related personal injury or work-related illness of a seaman;
(E) the seaman cooperated with a safety investigation by the Secretary or the National Transportation Safety Board;
(F) the seaman furnished information to the Secretary, the National Transportation Safety Board, or any other public official as to the facts relating to any marine casualty resulting in injury or death to an individual or damage to property occurring in connection with vessel transportation; or
(G) the seaman accurately reported hours of duty under this part.
(2) The circumstances causing a seaman’s apprehension of serious injury under paragraph (1)(B) must be of such a nature that a reasonable person, under similar circumstances, would conclude that there is a real danger of an injury or serious impairment of health resulting from the performance of duties as ordered by the seaman’s employer.
(3) To qualify for protection against the seaman’s employer under paragraph (1)(B), the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition.
(b) A seaman alleging discharge or discrimination in violation of subsection (a) of this section, or another person at the seaman’s request, may file a complaint with respect to such allegation in the same manner as a complaint may be filed under subsection (b) of section 31105 of title 49. Such complaint shall be subject to the procedures, requirements, and rights described in that section, including with respect to the right to file an objection, the right of a person to file for a petition for review under subsection (c) of that section, and the requirement to bring a civil action under subsection (d) of that section.