When is a Towing Vessel an Inspected Vessel?

A rule adopted by the Courts is that if a seaman (as defined by the Jones Act) is injured as a consequence of his employer’s breach of a government regulation or statue intended to protect the safety of seamen, then the employer is presumed negligent per se.  The burden then falls on the employer to prove that its violation of the statute could not, to any extent, have been a factor which contributed to the cause of the accident and resulting injury.  This can be a heavy burden for the employer to carry.  Further, if the judge or jury finds that the employer did breach a safety regulation intended to protect the seaman, and the breach was a contributing cause of the injury, then the employer is 100% responsible for the damages, even if the injured employee also acted so as to contribute to causing his injury.

Recently this doctrine became the focus of attention in an interesting case from the United States District Court in Hawaii.  In Habel v. Grove Farm Fish & Poi, LLC, decided February 27, 2012, Habel, a diver and offshore crewman assigned to Grove’s vessel the M/V WAILOA, suffered a decompression injury as a consequence of a dive to 130 feet.  He filed suit and claimed that Grove failed to provide a safe place in which to work, including lack of commercial diving safeguards and procedures required by law.

Habel claimed that he was entitled to legal status as a seaman assigned to the WAILOA because of his work as a diver from the WAILOA, and because he spent 95% of his time working aboard the WAILOA helping with the mooring lines, piloting, and maintenance of the engines.  Habel claimed that he clearly contributed to the mission of the WAILOA and was entitled to the protections afforded him by the Jones Act.

Habel also argued that U.S. Coast Guard commercial diving regulations created mandatory legal duties which Grove was required to follow.  In support of his argument, Habel stated that the U.S. Coast Guard regulations applied to his diving work staged from the WAILOA because the WAILOA was required to have a Certificate of Inspection issued by the Coast Guard due to its status as a “towing vessel” subject to inspection by the Coast Guard (citing 46 U.S.C. 2101(40), 3301(15) and 3311(a); 46 C.F.R. 197.202).  In addition to its other uses, the WAILOA was also utilized to tow a “feed” barge to the offshore fish pens.  Specifically, he alleged that Grove breached Coast Guard commercial diving regulations requiring that it have in place a diving supervisor to insure that certain safety procedures are followed for the protection of the diver in the water.  Because Habel was the intended beneficiary of these regulations, and their breach by Grove caused his injury, Habel sought a ruling from the court that Grove was negligent per se

In its defense, Grove argued that the Coast Guard regulations relied upon by Habel did not apply because the Coast Guard had never required the WAILOA to have a Certificate of Inspection, and it was not an inspected vessel when Habel worked aboard her.  Grove noted that the Maritime Act of 2004 amended 46 U.S.C. 3301, et seq., added towing vessels to the classes of vessels that require Coast Guard inspection.  However, the statute is silent as to what particular cases came within the rule prescribed by Congress.  Grove argued that the statute only authorized the Coast Guard to establish regulations for implementing the new requirement, and that the statute had no force of its own without the administrative adoption of implementing regulations.  Because the Coast Guard had not actually implemented any procedures for the inspection of towing vessels during the time that Habel was employed, the statute had no effect and did not apply to the WAILOA. It argued that the statute cited by Habel as requiring inspection of the WAILOA was dependent on the Coast Guards pending regulations to determine whether vessels like the WAILOA were subject to inspection, and, if so, the nature and scope of the inspection.  In short, Grove claimed that there were no Coast Guard procedures in place for the inspection of the WAILOA when Habel was injured, and that the safety regulations relied upon by him did not apply as she was an uninspected vessel at the time of the injury.

In sorting this out, the court agreed with Habel that 46 U.S.C. 3301(15) classified all “towing vessels” as vessels subject to Coast Guard inspection and that the action of classification was complete and effective upon enactment in 2004.  It found that although the WAILOA was not required to be inspected by the current Coast Guard regulations, it did not follow that the WAILOA was not a “towing vessel” subject to 3301(15).  The court held that 3301(15) brought the WAILOA within reach of the inspection statute regardless of the ultimate inspection regime to be established by as yet unpromulgated regulations.  The court found that the WAILOA fit the statutory definition of a towing vessel, 46 U.S.C. 2101(40), and that the fact that the Coast Guard did not yet have in place inspection guidelines or procedures, and that the WAILOA had not actually been inspected and held no certificate was of no moment. The WAILOA fit the definition of a towing vessel which was subject to Coast Guard inspection and, consequently, the Coast Guard commercial diving regulations applied to Grove’s diving operations conducted from her, even though she had never been inspected and did not require a Certificate of Inspection when Habel was injured.

Thus, meeting the statutory definition of a “towing vessel” was enough to expose Grove to presumption of negligence per se.

Will Bland
As a Member at Mouledoux, Bland, Legrand & Brackett, Will Bland regularly represents the interests of vessel operators, both brown water and offshore, oilfield operators, and their insurers in matters involving personal injury, collisions, sinkings, products liability, toxic torts, and contractual disputes. His practice areas include maritime personal injury defense, maritime collision and property damage insurance coverage, contractual indemnity, longshore matters and general litigation. Will can be contacted at (504) 595-3000 or via e-mail at wbland@mblb.com.
Will Bland