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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 defes 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
oilfeld 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 frst 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 specifes detailed actions necessary to
prevent risk to personnel and equipment in the storm’s
path.
The plan should provide specifc 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 frst 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 fulfll 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 fow
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 diffcult, 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.
