Investigation of Marine Casualties – Rights of Parties in Interest

Flickr Coast Guard InvestigationWhen a marine casualty occurs the U.S. Coast Guard is empowered to conduct an investigation to determine “as closely as possible” the cause of the casualty, cause of any death, whether an act of misconduct, incompetence, negligence, unskillfulness, or willful violation of law committed by any licensed or certified individual or member of the Coast Guard contributed to the cause of the casualty, whether there is evidence that an act subjecting the offender to a civil or criminal penalty has been committed and whether there is a need for new laws or regulations, or amendment or appeal of existing laws or regulations. 46 U.S.C. 6301.

But what about the rights of the parties to the casualty? What is the extent of their participation in the investigation?  46 U.S.C. 6303 provides that in such an investigation parties in interest (PII) shall be allowed to be represented by counsel, cross-examine and call witnesses.  PIIs include an owner, any holder of a license or certificate of registry, holder of a merchant mariner’s document, any person whose conduct is under investigation, and any other party in interest.  This has been expanded to include any person who the USCG finds to have a “direct interest” into the investigation.  However, in practice these guidelines do not provide much relief to the owner of a subject vessel when on-the-scene interviews and inspections by the Coast Guard are underway in the immediate wake of a significant marine casualty.  The degree that the PII could actively participate and be privy to interviews, statements and other discovered evidence was largely dependent upon the discretion of the investigating officers.

In 2010, in response to industry calls for more active participation, inclusion and transparency, the Coast Guard issued CG-545 Policy Letter 3-10. In it the Coast Guard made clear that PIIs have the right to participate in “all levels of investigation”, not just formal hearings.  This is important.  The PII has the right to immediate participation.  This includes the right to be present during interviews of all witnesses (not just those of its own crew or employees), to be present during on-scene inspections, to present evidence to the Coast Guard and request that particular witnesses be interviewed.

To be clear, however, the Policy Letter mandates that the Marine Board of Investigation or Investigating Officer (IO) are in charge of all aspects of the investigation. In order for an interested party to participate it must be recognized by the Board or IO as a PII.  The IO has the prerogative to formally designate PIIs during the course of the investigation.  But the party that believes it is a stakeholder in the casualty is best served by making formal application with the IO to be designated as a PII.  When application is made the IO must give it due consideration.  If the applicant meets the criteria found in Part 6303 and Part 2 of the Policy Letter it “shall” be given PII status.  The request for PII recognition may be made verbally, but needs to be followed in writing within 24 hours.  The IO’s initial designation may be verbal, but needs to be made in writing by the IO within 5 business days of receipt of the written request for PII designation.

The stakeholder needs to know that the IO is not required to designate PIIs. It is incumbent on the stakeholder to act early and promptly to contact the IO and make clear that it seeks PII status.  The IO is required to notify the PII when witnesses will be interviewed, but is not obligated to accommodate the schedule of the PII.  If the PII provides a witness the IO shall determine if the witness is relevant to the investigation.  If the IO finds that the witness is not relevant, the witness will not be interviewed.

During interviews the IO is in charge. When the IO has completed his portion of the interview, the PII then may ask questions.  The IO is empowered to determine if the questions the PII asks are relevant.  If he finds that a question is not relevant it will not be allowed and the witness informed not to respond.  Part 4e of the Letter provides that the rights of the PII apply only to conducting witness interviews.  The IO “may” allow the PII to review any or all evidence gathered during the fact-finding portion of the investigation.  The PII is not allowed to have its own copies (in any form) of any documentation (read: statements) with the exception of the names and work information of the witnesses.  Additionally the IO “may” allow the PII to review the findings of fact portion of the report of investigation, but the PII is prohibited from being involved in the development or review of analysis, conclusions or recommendations for a marine casualty investigation.  As is obvious, while the Policy Letter does provide for active PII participation, it does leave to the IO significant discretion what witness or evidence he will deem worthy of consideration.  Irrespective of this, the PII should take every opportunity to submit witnesses and evidence it believes is favorable to its interests.

While the language in Part 4c restricts access by the PII to third-party documents such as log books, photos, witness statements and other evidence and what witnesses will be deemed relevant, in practice I have found that the on-site Coast Guard investigators more times than not want to work with industry and will share documents, provide access to evidence that is developed, and will accommodate the work schedules of witnesses and company representatives or PIIs.

Excellent Flickr Photo courtesy of Jonathan James.

CRS Publishes “The Cost of Iraq…”

Last month, the Congressional Research Service published its new paper, “The Cost of Iraq, Afghanistan, and Other Global War on Terror Operations Since 9/11.”  Not only does the report provide a look back at the $1.6 trillion spent since September 11, 2001, it also addresses the potential costs of war over the next year.

With enactment of the FY2014 Consolidated Appropriations Act on January 1, 2014 (H.R. 3547/P.L. 113-73), Congress has approved appropriations for the past 13 years of war that total $1.6 trillion for military operations, base support, weapons maintenance, training of Afghan and Iraq security forces, reconstruction, foreign aid, embassy costs, and veterans’ health care for the war operations initiated since the 9/11 attacks.

Of this $1.6 trillion total, CRS estimates that the total is distributed as follows:

• $686 billion (43%) for Operation Enduring Freedom (OEF) for Afghanistan and other counterterror operations received;
• $815 billion (51%) for Operation Iraqi Freedom (OIF)/Operation New Dawn (OND);
• $27 billion (2%) for Operation Noble Eagle (ONE), providing enhanced security at military bases; and
• $81 billion (5%) for war-designated funding not considered directly related to the Afghanistan or Iraq wars.

About 92% of the funds are for Department of Defense (DOD), 6% for State Department foreign aid programs and diplomatic operations, 1% for Department of Veterans Administration’s medical care for veterans. In addition, 5% of the funds (across agencies) are for programs and activities tangentially-related to war operations.

The FY2015 war request for DOD, State/USAID, and Veterans Administration Medical totals $73.5 billion including $58.1 billion for Afghanistan, $5.0 billion for Iraq, $ 100 million for enhanced security, and $10.4 billion for other war-designated funding. These totals do not reflect the new FY2015 request submitted in November 2014 to cover expenses for Operations Inherent Resolve (OIR) that began with airstrikes launched in late August 2014, to aid Syrian insurgents and the Iraq government to counter the takeover of territory by the Islamic State (IS). The Administration submitted a $5.5 billion FY2015 budget amendment for this operation that Congress is considering. Including the new request, the FY2015 war funding now totals $79.0 billion.

In late May 2014, the President announced that troop levels in Afghanistan would fall from 33,000 to 9,800 by January 1, 2015 with the U.S. role focusing on advising Afghan security forces and conducting counter-terror operations. A year later, by January 1, 2016, the President stated that the number of troops in Afghanistan would halve to about 4,900 and then by the beginning of 2017, settle at an embassy presence of about 1,000.

Overall U.S. troop levels in Afghanistan and Iraq began to decline with the withdrawal of all U.S. troops from Iraq by December 2011. The troop decline continued with President Obama’s announcement in February 2013 that the number of U.S. troops in Afghanistan would halve from 67,000 to 34,000 by February 2014. Annual war costs also decreased from a peak of $195 billion in FY2008 to $95 billion enacted in FY2014. After the reversal of the 2009 Afghanistan surge, the President promised in the 2013 State of the Union address that “our troops will continue coming home at a steady pace as Afghan security forces move into the lead [and] our mission will change from combat to support.” He also stated that by “2014, this process of transition will be complete, and the Afghan people will be responsible for their own security.”

The FY2015 Continuing Resolution (H.J.Res. 124/P.L. 113-164) sets war funding at the FY2014 enacted level of $95.5 billion, which exceeds the FY2015 amended request (with OIR) by about $16.5 billion. The CR expires on December 11, 2014, and Congress is expected to enact another CR or an Omnibus appropriations act for the rest of the fiscal year.

Congress may face several budgetary issues about how to respond to the FY2015 war request and longer-term war cost issues including: • assessing the amount, purposes, and level of funding to support U.S. troops during the post-2014 drawdown;

• evaluating the Administration proposal for a new flexible funding account that would provide $5 billion for a Counterterrorism Partnerships Fund (CTFP) to respond to unspecified “evolving threats from South Asia to the Sahel” by “building partnership capacity” through Train & Equip programs;
• defining what is an appropriate war-related cost as opposed to what is in the base, non-war budget, a choice made more difficult in part by the potential squeeze on agencies’ base budgets that are subject to Budget Control Act spending limits (P.L. 112-25);
• estimating the potential long-term cost of the war, including repairing and replacing war-worn equipment and maintaining an “enduring presence” that could entail a substantial footprint in the region; and
• responding to the November 2014 request for $5.5 billion for Operation Inherent Resolve, the new operation to counter the Islamic State.

There are some indications that the FY2015 DOD war funding request may be more than is needed in light of FY2014 experience when expenses for returning troops and equipment have proven to be lower and the pace faster than anticipated. If expenses are lower and withdrawal is faster than anticipated, the FY2015 request may also include excess funds that could be used to pay for part or all of the new $5.5 billion request to counter the Islamic State. Savings in FY2015 could be partly offset by the recent announcement by Secretary Hagel that up to 1,000 U.S. troops could be kept in Afghanistan until the spring of 2015 to substitute for a delay in NATO troops being available to provide needed support.

Members have raised various concerns about the broad authorities requested for the new CTPF, which exceed current authorities for other Train & Equip programs. The conference version of the FY2015 National Defense Authorization Act, H.R. 3797, reduces the funding and rejects most of the new authorities requested. Other concerns include the lack of evidence of success in previous similar programs, particularly in situations like the complex political-military environment in Syria and Iraq.

Congress may wish to consider ways to restrict war-funding to exclude activities marginally related to war operations and support, and to limit the use of ground troops in Operation Inherent Resolve.

This imbedded hyperlink will take you to the CRS’s report.

Top Workers’ Compensation Blog Honoree – 2014

We received a great Christmas present the other day.  LexisNexis included Navigable Waters as one of the Top Blogs for Workers’ Compensation and Workplace Issues.  This most certainly makes for happier holidays.  Thank you.

Here is what LexisNexis had to say about our blog:

Navigable Waters
http://navwaters.com
Published by Mouledoux, Bland, Legrand & Brackett

A consistent name on our Top Blogs list is Navigable Waters, a Maritime, Longshore and Defense Base Act Blog, published by New Orleans law firm, Mouledoux, Bland, Legrand & Brackett. Receiving an award for the fifth consecutive year, the firm continues to post informative content on a timely basis. Whether it’s a piece on punitive damage recovery under maritime law [see http://navwaters.com/2014/09/30/punitive-damages-not-recoverable/], a post discussing the ability to reach LHWCA benefits to pay spousal support [see http://navwaters.com/2014/11/10/pa-court-requires-use-of-longshore-benefits-to-pay-spousal-support/], or the fascinating discussion of Yates v. United States, argued before the U.S. Supreme Court, which may decide whether a commercial fisherman’s action of throwing undersized fish back into the ocean could be a potential violation of the “anti-shredding” provision of Sarbanes-Oxley Act (Comp folks might not be familiar with “Sarbox.” Enacted in 2002 (Pub.L. 107-204), the law deals primarily with accounting fraud and other practices made famous in the Enron debacle) [see http://navwaters.com/2014/10/30/is-sarbanes-oxley-really-this-fishy/], this blog continues to be a real winner.

Louisiana’s Third Circuit Discusses Vessel Status of a Work Platform

Wooden hammerClaimant worked as an operator/deck hand for Employer for approximately eight months, when in February 2013, he suffered a partial amputation of his right thumb at work. Claimant required two surgeries for his thumb injury, and he timely received benefits under the Longshore and Harbor Workers Compensation Act. In May 2013, Claimant filed suit against Employer for money damages under the Jones Act claiming he qualified for status as a Jones Act seaman under 46 U.S.C.A. § 30104. Employer terminated Claimant’s Longshore benefits and began paying maintenance and cure under the provisions of the Jones Act. On December 6, 2013, Employer filed a Motion for Summary Judgment that Claimant was not a Jones Act seaman. The trial court granted the Motion for Summary Judgment. Claimant appealed to the Louisiana State Court of Appeal for the Third Circuit arguing the trial court misapplied Article 966.

Claimant’s work duties included both on-the-shore and “on the water” activities. He testified at his deposition that he spent 30-40% of his work time on the shore loading fertilizer onto trucks for delivery from Employer’s warehouse facility, and in the Biloxi-Gulfport area using an excavator to move sand to Employer’s port facility. Claimant spent the remaining 60-70% of the time working for Employer “on the water” on a floating, fixed platform in the Red River. The work platform was tied securely to the bottom of the river with pipes and a system of chains and cables. The platform had no navigational functions and was completely fixed in place. An excavator on the platform was used to unload fertilizer from transport barges. The barges were pushed to the work platform by a fleet boat or a line boat. Claimant tied the transport barge to the work platform and unload them. Once unloaded, the transport barge was moved away from the platform using the fleet boat. Claimant never got on Employer’s boat or was attached to a vessel of any kind. The work done by Claimant was accomplished on the work platform, on shore, and occasionally on the transport barges, which is where claimant was working at the time of injury. Claimant had no involvement in moving products on the river. For these reasons, the trial court found that the work platform at issue did not constitute a “vessel,” and Claimant did not qualify as a seaman under the Jones Act.

Qualification as a Jones Act seaman required claimant to show (1) that his duties “contributed to the function of the vessel or to the accomplishment of its mission” and (2) “a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and nature.” The determination of whether a given craft is a vessel is ordinarily resolved as a matter of law, however, fact issues may be presented. 1 U.S.C. § 3 defines “vessel” as a water-craft or other artificial contrivance used, or capable of being used, as a means of transportation on water (either practically possible or merely theoretical). A watercraft is not capable of being used for maritime transport in any meaningful sense if it has been permanently moored or otherwise rendered practically incapable of transportation or movement. From a practical standpoint, it must be designed to a practical degree for carrying people or things over water and subject to the peril of navigation to which craft used for transportation are exposed.

Similarly, the work platform in question was moored in place with no movement since 2010, it was secured by two pipes deeply embedded in the river, it had no United States Coast Guard documentation, it had no independent means of propulsion and no raked bow, it could not independently be navigated or be steered, if the work platform were to be moved it would be an extensive process requiring at least two tug boats and five personnel, and the platform had never moved during the time Claimant was employed by Employer. The Third Circuit thus concluded that the work platform where claimant worked 60-70% of the time was not designed to serve a transportation function and did not do so, and it did not qualify as a vessel in navigation for the purpose of allowing Claimant to maintain a Jones Act claim.

Albert Ross Armand v. Terral River Service, Inc., CA-14-610 (La. Ct. App. 3 Cir. 12/10/14).