ON THE JOB SAFETY AND SPECIAL LEGAL ISSUES
In no other industry is the phrase “safety is everyone’s job” more applicable than in the diving industry. Safety is surely the most important aspect of a diving job. It is important to remember that the law requires that a diver answer for his or her unsafe actions just as a dive company or vessel owner must answer for its unsafe actions.
With this in mind, every diver should do all in his or her power to make positive contributions to the safety program within the company. The diver should not hesitate to make suggestions to the dive company that will assist in improving the safety of the company’s diving operations. Only through a mutual sharing of suggestions will the diver’s work place become a safe work place.
A COMPANY’S DUTY TO EVACUATE PERSONNEL
Riding out a hurricane several miles inland is a frightening experience for the most stalwart among us. Riding out a hurricane offshore defies description. Only the most blessed live to tell the story.
Mariners across the Gulf Coast have recently experienced more storms than the “old-timers” can recall. Unfortunately, the recent storms have claimed far too many maritime casualties related to improper emergency evacuations.
What is the legal responsibility of a maritime employer or vessel owner to evacuate their employees or passengers as a hurricane approaches?
DUTY TO PROTECT
Unlike land-based worksites the offshore environment presents several unique challenges for the maritime worker. “Commuting” to a mariner’s workplace involves not only exposure to the “perils of the sea” but also a strict reliance on others for transportation to and from oilfield platforms, drilling rigs or “on location”.
Under the admiralty law a maritime employer of “seamen” must exercise reasonable care in the evacuation of its personnel during hurricane season or times of perilous weather.
The employer must take all reasonable precautions in securing information concerning approaching weather, potential effects of the storm and the timeline for the storm’s arrival. Once it becomes probable that the storm’s fury will present a risk of harm to its personnel the employer is duty bound to provide safe and secure evacuation to safe harbor. Under the law the “duty to protect” life primes any concern, including the value of equipment or job completion.
Likewise, a maritime contractor in the business of transporting personnel to and from offshore facilities or work sites must do everything in its power to ensure that the voyage is conducted in the safest manner possible. The vessel owner must ensure that its crew is competent and that its vessel is ft.
Federal agencies have enacted statutory mandates to protect offshore workers threatened by severe weather in the Gulf of Mexico. A most important mandate is the requirement to enact and publish an Emergency Evacuation Plan.
EMERGENCY EVACUATION PLAN – AN EEP
In reviewing the actions of an employer in protecting the lives of its employers during hurricane or severe weather evacuation, one first inquires as to whether the company published a severe weather guide or an emergency evacuation plan, also known as an “EEP”. A properly drafted EEP specifies detailed actions necessary to prevent risk to personnel and equipment in the storm’s path.
The plan should provide specific action plans once the storm passes predetermined radius milestones from the work site. Among an almost endless list of exigencies within the “action plans”, the company should identify transportation needs for “essential” and “non-essential” personnel. Action plans for vessels should spell out when “evasive” action, rather than “fight to safe harbor’”, should be initiated. No plan can be too detailed. Having an EEP is only the first step in protecting personnel from the wrath of an approaching storm. Practicing, perfecting and implementing the plan come next. Companies should practice implementing the plan until it becomes second nature. As we’ve seen in recent storms, failure to “follow through” with the EEP can be as dangerous as having no plan at all.
TWO LANDMARK ADMIRALTY CASES
As stated above pursuant to statutory and admiralty law requires that a maritime contractor working in the Gulf of Mexico prepare and execute an EEP when storms threaten. Failure to fulfill this obligation exposes the delinquent company to damages should someone under their care sustain damages.
Two landmark maritime cases illustrate how companies who fail in their obligations to follow their EEP pay the price.
In 1995 a major diving contractor failed to evacuate a dive crew from a derrick lay barge working in the Bay of Campeche in anticipation of Hurricane Roxanne. As the storm approached the vessel began to sink while in tow. The divers abandoned ship and jumped into the 30-35 foot seas. One of the divers fled suit and a judge trial convened in southern Louisiana.
In 2000 the Court concluded that the diving contractor was negligent, in part, for failing to evacuate its dive crew from the barge in anticipation of Hurricane Roxanne’s arrival, in failing to order the barge’s tow to safe harbor and in failing to execute the company’s EEP.
In a similar scenario another admiralty court reviewed the actions of a vessel in its evacuation of employees from a drilling rig in the Gulf of Mexico during Hurricane Danny in 1997. As the storm approached, oil company representatives decided, in adherence to its EEP, to evacuate 25 non-essential workers from the rig. The oil company contacted a charter vessel dispatching it to the rig to evacuate the workers.
The vessel arrived, picked up the workers and headed for safe harbor. Unfortunately, the vessel’s captain either failed to monitor the path of the hurricane or didn’t heed the National Weather Service’s report that the hurricane had turned sharply into the vessel’s course. The vessel encountered heavy rains and rough seas. The vessel was blown off course and ran aground on a sand bar. Eventually the captain freed the crew boat and set out for deeper water to wait it out. Two workers sustained injuries in the 15 hour voyage, which under normal circumstances should have taken no more than 6 hours. The admiralty court concluded that the vessel’s captain breached his duty to take reasonable care in protecting the passengers aboard the vessel. The seminal mistake of the captain, the court concluded, was his failure to monitor the weather updates and adjust his course accordingly.
THE BOTTOM LINE
On even the calmest days offshore, the maritime workplace exposes the professional mariner to what is termed in Admiralty Law, the “perils of the seas”. When Mother Nature unleashes her fury offshore the mariner is dependent on others to see him to safe harbor. The Admiralty Law recognizes the obligation on an employer or vessel owner to not only recognize this responsibility, but to also prepare to evacuate those under their care in a safe and professional manner.
DIVING AND DRUG USAGE
Over the past several years illicit drug use has become pervasive in our society. The diving industry has seen its share of drug use and in some cases more than the norm. From a legal, operational and medical point-of- view, drugs have no place in diving.
The statistics associated with drug use/alcohol abuse at the workplace are troubling:
- 10% of full time U.S. employees abuse alcohol or use drugs on the job;
- 40-50% of all worker’s compensation claims are related to drug use/alcohol abuse;
- 40% of all on-the-job fatalities are attributed to drug use/alcohol abuse in the general work population; and
- 54% of all on-the-job fatalities for workers less than 44 years old are attributed to drug use/alcohol abuse.
- U.S. workers who use illegal drugs or who abuse alcohol are: 2.5 times more likely to be absent 8 or more days from work;
- 3.6 times more likely to injure himself or others at work;
- 5 times more likely to be injured in an off the job injury;
- 5 times more likely to fle a workmen’s compensation claim; and
- 10 times more likely to miss work on a regular basis.
Drug use impairs judgment, decision-making and simple common sense, all attributes needed by the diver and his or her support team. The dive team cannot afford to jeopardize the safety of the job because of a poor decision precipitated by drug- impaired judgment.
Professionally, a diver with a reputation of drug use may become “black-balled” within the industry. Drug testing is legal and is becoming more commonplace within the industry. Companies are becoming more hesitant to hire anyone with a history of proven or suspected involvement with drugs. This includes alcohol abuse.
Medically, drug usage and exposure to the hyperbaric environment is risky. Certain drugs alter the blood flow in the circulatory system. For example, cocaine acts as a vascular constrictor; constriction of the blood vessels prior to diving results in physiological changes which could have life-threatening consequences during decompression. One well respected hyperbaric physician has analogized diving with cocaine in one’s system to playing Russian roulette; a diver may survive over the short term, but sooner or later drug use will have very severe consequences.
Prolonged drug abuse may deteriorate mental faculties, including speech, memory and reasoning. These same cognitive functions may be affected as a result of a CNS hit to the brain. If it is proven that a diver has a prolonged history of drug use, it may be very difficult, if not impossible, for the treating physician to differentiate between cognitive dysfunction caused by drugs and symptoms associated with a CNS hit. At the very least, drug use by the diver may severely hamper the neurologic examinations necessary to properly document diver injuries.