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Marine & Energy News Alert: DOL Finds Employer Violated Seaman's Protection Act by Demoting Master for Reporting Safety Concerns to USCG

July 29, 2016

A U.S. Administrative Law Judge has rendered a judgment in excess of $1 million in favor of a ship captain, finding his employer violated the Seaman’s Protection Act legislation designed to protect seaman against retaliation for reporting safety concerns to Federal agencies.

Captain John Loftus filed a complaint with the U.S. Department of Labor’s Occupational Safety and Health Administration alleging his employer, Horizon Lines, Inc., unlawfully terminated his employment for reporting to the U.S. Coast Guard and its agent, the American Bureau of Shipping, what he believed to be violations of maritime safety law and regulations on the ship he worked as Master.

In October 2011, Loftus emailed his head office indicating he had reported directly to the American Bureau of Shipping (“ABS”) and the U.S. Coast Guard what he believed to be safety violations aboard the ship he worked on as Master. The safety violations at issue related to certain pieces of what Loftus termed “derelict” equipment aboard the vessel. The U.S. Coast Guard conducted an investigation in response to Loftus’ complaints and criticized some equipment aboard the vessel forcing Horizon to take corrective measures.

In August 2012, Loftus made a complaint to Horizon’s management team about shipboard safety issues. In response to this complaint, Horizon’s management team flew to San Juan to meet with Loftus and to inspect the vessel. During the visit, Loftus stated that if Horizon did not contact either the U.S. Coast Guard or ABS regarding his safety concerns, he would contact the agencies himself. Horizon contacted ABS and, after an inspection, ABS gave Horizon 30 days to fix certain equipment it deemed was not in compliance with safety regulations.

In February 2013, Loftus contacted the ABS surveyor who had previously performed the vessel’s annual inspection to complain about safety issues aboard the vessel and questioned how ABS could “possibly let a ship go to sea in that condition.” This phone call led to another ABS survey finding several deficiencies aboard the vessel. After the inspection, a Horizon representative called Loftus to ask if he was the individual who contacted ABS about the vessel’s condition, and Loftus acknowledged that he did.

In March 2013, the vessel’s chief officer sustained injuries while at sea that required him to be airlifted for medical treatment. Shortly after the chief officer was airlifted, the vessel encountered severe weather that required Lofton to man the bridge (as the vessel’s Master) at all times. Meanwhile, Horizon’s office requested that Loftus timely perform required drug and alcohol tests on the ship’s crew. Loftus refused to do so, stating he was busy navigating the vessel through severe weather and did not want to leave the bridge. Contrary to several requests from Horizon, Loftus did not conduct the drug tests until the vessel reached her destination. Loftus then contacted the U.S. Coast Guard and ABS directly regarding “the conflict between mandatory drug testing requirements and a Captain’s duty and authority to do what is safe.” The U.S. Coast Guard acknowledged Loftus’ concerns, but indicated he had to speak to his shore side managers first stating that the U.S. Coast Guard could only intervene if Horizon actually violated the regulations.

Loftus did not disclose he had contacted the U.S. Coast Guard about the drug and alcohol testing issue until an April 11, 2013, Horizon management meeting aboard the vessel. In response to this disclosure, Loftus was told at the management meeting that Horizon was simply following its legal obligations under the U.S. Coast Guard regulations, and that he should contact Horizon before reaching out to the regulatory agencies. After the meeting, Horizon formed a group responsible for determining what, if any, discipline to impose on Loftus for the March 2013 incident. The team ultimately decided that Loftus would be removed from his position as Master but could work as Chief Mate upon completing leadership and communication training. Loftus refused to accept the demotion.

On June 30, 2013, Loftus filed a complaint with OSHA alleging Horizon unlawfully retaliated against him. Specifically, Loftus alleged Horizon constructively discharged him for reporting to the Coast Guard and its agent, ABS, what he believed to be violations of maritime safety law regulations on the ship he worked as Master.

The Seaman’s Protection Act prohibits retaliation against seaman for reporting safety concerns in good faith to Federal agencies. Specifically, 46 U.S.C. § 2114(a) provides:

A person may not discharge or in any manner discriminate against a seamen because … the seaman in good faith has reported or is about to report to the U.S. 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 the law or regulation has occurred.

Key Takeaway
After lengthy analysis, Administrative Law Judge Jonathan C. Calianos held on July 12, 2016 that Horizon violated Loftus’ right to be free from retaliation under the Seaman’s Protection Act because it found Loftus proved by a preponderance of the evidence that he engaged in protected activity in October 2011, August 2012 and February 2013 by reporting and threatening to report to the U.S. Coast Guard and ABS what he believed to be safety violations on the ship and that this protected activity was a contributing factor in Horizon’s decision to take adverse action against him.

In so finding, the Administrative Law Judge awarded Loftus $655,198.90 in back pay, $10,000 in compensatory damages for emotional distress and $225,000 in punitive damages, plus attorney fees and costs.

Click here to read the entire decision.