DAVID J. FARRELL, JR.FARRELL SMITH O’CONNELL AARSHEIM APRANS LLP

PRESIDENT, THE MARITIME LAW ASSOCIATION OF THE UNITED STATES

dfarrell@fsofirm.comwith thanks to

ANDREW BLACKFARRELL SMITH O’CONNELL AARSHEIM APRANS LLP

ablack@fsofirm.com

H O U S T O N M A R I N E & E N E R G Y I N S U R A N C E C O N F E R E N C E

S E P T E M B E R 2 0 , 2 0 2 1

OFFSHORE WIND –THE U.S. LEGAL PERSPECTIVE

© Farrell Smith O’Connell Aarsheim Aprans LLP

BLOCK ISLAND WIND FARM (KYLE SIDLIK/URI NEWS)

FARRELL SMITH O’CONNELLAARSHEIM APRANS LLP

• SERVING COASTAL NEW ENGLAND• DEFENSE OF VESSEL OWNERS,

INSUREDS• P&I AND HULL CLUBS, INT’L AND

DOMESTIC INSURERS• COMMERCIAL DISPUTES• VESSEL TRANSACTIONS• USCG COMPLIANCE, INVESTIGATIONS• MARITIME CRIMINAL DEFENSE

MARITIME LAW ASSOCIATION OF THE UNITED STATES• FOUNDED 1899• OBJECTIVES

ADVANCE REFORM IN U.S. MARITIME LAW;PROMOTE UNIFORMITY; PARTICIPATE IN CMI, IMO

• MLA COMMITTEES MEET TWICE PER YEARMONITOR COURT CASES, LEGISLATION,REGULATIONS, POLICY DEVELOPMENTS,INCLUDES COMMITTEE ON OFFSHORE INDUSTRIES

• WWW.MLAUS.ORGBLOCK ISLAND WIND FARM (MARY ANNE HITT/SIERRA CLUB)

CAPE WIND ENERGY PROJECT

Proposed Offshore Wind Project located in Federal Waters of Nantucket Sound

130 Turbines, 1/3 mile spacing

Filed permit applications with Federal & State Agencies in November 2001

Received first US commercial offshore wind lease in October 2010

Faced fierce opposition and legal battles from the outset filed by shoreside property owners, wildlife advocates, towns, and more.

Project also faced a changing regulatory process at the federal, state, and local levels

16 year battle finally ended in 2017, when the lease was surrendered before any turbines had been built and over $60 millions expended

MAP VIEW OF THE PROPOSED CAPE WIND SITE (JESSE COSTA/WBUR)

• PROPERTY OWNERSE.G., ALLIANCE TO PROTECT NANTUCKET SOUND

• ENVIRONMENTAL GROUPS E.G., PUBLIC EMPLOYEESFOR ENVIRONMENTALRESPONSIBILITY

ILLUSTRATION OF 144 WIND TURBINES LOCATED 5 MILES OFFSHORE (LAURA TAYLOR/NC STATE NEWS)

PRIVATE INTEREST GROUP OPPOSITION NIMBY

FISHERIES SURVIVAL FUND

COMMERCIAL FISHING OPPOSITION

• RESPONSIBLE OFFSHORE DEVELOPMENT ALLIANCE(RODA)-- CHALLENGING VINEYARD

WIND

• FISHERIES SURVIVAL FUND -- CHALLENGING SITING OF

OSW LEASES INNY BIGHT

• PACIFIC COAST FEDERATIONOF FISHERMEN’S ASSOCIATIONS (PCFFA)

ALLCO RENEWABLE ENERGY LIMITED

v.HAALAND

D. MASS. NO. 21-CV-11171-IT

FILED JULY 18, 2021

NANTUCKET RESIDENTSG AGAINST TURBINES

v.BOEM

D. MASS NO. 21-CV-11390-ADB

FILED AUGUST 25, 2021

PENDING SUITS AGAINSTVINEYARD WIND

VISUAL IMPACT MAP OF VINEYARD WIND PROJECT (ACKRATS)

FEDERAL AGENCIES INVOLVED IN PERMITTING AND LICENSING

KEY AGENCY APPROVALS AND OVERSIGHT

U.S. Coast Guard

Bureau of Safety & Environmental Enforcement

Federal Aviation Administration

U.S. Army Corps of Engineers

Environmental Protection Agency

National Oceanic & Atmospheric Administration

AGENCY APPROVALS AND OVERSIGHT

U.S. Coast Guard

14 U.S.C. § 81:

AUTHORIZES USCG TO ESTABLISH AIDS TO NAVIGATION. USCG MUST APPROVE ANY PRIVATE AIDS TO NAVIGATION (PATON)

46 C.F.R. SUBCHAPTER L:

USCG IS THE PRIMARY REGULATOR AND ENFORCER FOR NAVIGATIONAL SAFETY, WORKER SAFETY, LIFE AND PROPERTY ON OFFSHORE SUPPLY VESSELS

AGENCY APPROVALS AND OVERSIGHT

RIVERS AND HARBORS APPROPRIATION ACT OF 1899, SECTION 10 (33 U.S.C. § 403)

DELEGATES TO THE USACE THE AUTHORITY TO REVIEW AND APPROVE THE BUILDING OF ANY STRUCTURE IN NAVIGABLE WATERS, AND THE AUTHORITY TO REVIEW AND REGULATE ANY EXCAVATION, FILLING, OR OTHER WORK THAT TAKES PLACE IN, OR THAT AFFECTS, NAVIGABLE WATERS OF THE UNITED STATES

U.S. Army Corps of Engineers

AGENCY APPROVALS AND OVERSIGHT

FEDERAL AVIATION ACT OF 1958 (14 C.F.R. PART 77)

REQUIRES THAT WHEN CONSTRUCTION OR ALTERATION IS PROPOSED, ADEQUATE NOTICE BE GIVEN TO THE FAA AS NECESSARY TO:

1) EVALUATE THE EFFECT ON SAFETY IN AIR COMMERCE AND THE EFFICIENT USE AND PRESERVATION OF THE NAVIGABLE AIRSPACE AND OF AIRPORT TRAFFIC CAPACITY AT PUBLIC USE AIRPORTS;

2) DETERMINE WHETHER THE EFFECT OF PROPOSED CONSTRUCTION OR ALTERATION IS A HAZARD TO AIR NAVIGATION

Federal Aviation Administration

AGENCY APPROVALS AND OVERSIGHT

CLEAN WATER ACT (33 U.S.C. CHAPTER 26)

AUTHORIZES THE EPA TO ISSUE NATIONAL POLLUTANT DISCHARGE ELIMINATION PERMITS FOR DISCHARGES OF ANY POLLUTANTS INTO NAVIGABLE WATERS OF THE UNITED STATES

CLEAN AIR ACT (42 U.S.C. CHAPTER 85)

REQUIRES THE EPA (OR AUTHORIZED STATE AGENCY) TO ISSUE A PERMIT BEFORE CONSTRUCTION OF ANY NEW MAJOR STATIONARY SOURCE OF AIR POLLUTION

Environmental Protection Agency

AGENCY APPROVALS AND OVERSIGHT

MARINE MAMMAL PROTECTION ACT (16 U.S.C. CHAPTER 31)

NOAA RESPONSIBLE FOR ISSUING PERMITS THAT AUTHORIZE THE TAKING OF ANY MARINE MAMMAL

IF AN ENERGY PROJECT COULD HARM, HARASS, OR TAKE A MARINE MAMMAL THEN THE APPLICANT MAY NEED TO OBTAIN AN INCIDENTAL TAKE AUTHORIZATION

National Oceanic & Atmospheric Administration

AGENCY APPROVALS AND OVERSIGHT

OUTER CONTINENTAL SHELF LANDS ACT (43 U.S.C. § 1331 ET SEQ.)

BSSE IS THE PRIMARY REGULATOR AND ENFORCEMENT AGENCY FOR WORKER SAFETY AND HEALTH ON OFFSHORE WIND FARM CONSTRUCTION AND OPERATIONS

OVERSEES OFFSHORE WORKER SAFETY WITH RENEWABLE ENERGY REGULATIONS REQUIRING COMPANY SAFETY MANAGEMENT SYSTEMS AND SELF-INSPECTIONS PLUS AGENCY-CONDUCTED INSPECTIONS AND ENFORCEMENT

Bureau of Safety & Environmental Enforcement

OTHER U.S. STATUTORY FRAMEWORK FOR OSWDEVELOPMENT

• Energy Policy Act of 2005 (EPAct) - Authorized BOEM to issue leases and requires

coordination with relevant federal agencies

• National Environmental Policy Act of 1970 (NEPA)- Requires BOEM to study environmental impact of

any Offshore Wind Farm with affected agencies

• Coastal Zone Management Act of 1972 (CZMA)- Agency activities must be consistent with the

policies of a state’s coastal management program

• Additional Federal Statutes- Endangered Species Act; Migratory Bird Treaty Act of

1916; Marine Mammal Protection Act; Magnuson-Stevens Fishery Conservation and Management Act; and

National Historic Preservation Act

OFFSHORE WIND PROJECTS

US COAST GUARD NOTICE TO MARINERS

MARITIME LAW ISSUES FACING

U.S. OFFSHORE WIND• ADMIRALTY JURISDICTION

U.S. CONSTITUTION – ARTICLE III§2

• MARITIME SUBSTANTIVE LAWTHE JONES ACT x 2

U.S.A CABOTAGE PROTECTION SEAFARERS’ PERSONAL INJURIES

LONGSHORE & HARBOR WORKERS COMPENSATION ACT (LHWCA)

MARITIME COMMON LAW (CASES)

ADMIRALTY JURISDICTION OVER MARITIME CONTRACTS

MARITIME CONTRACTSDON’T NEED A VESSELSO LONG AS “MARITIME SERVICE OR MARITIMETRANSACTIONS” ARE INVOLVED

BUT NOT VESSEL CONSTRUCTION OR SALES

NORFOLK SOUTHERN RY. v.KIRBY, 543 U.S. 14 (2004)

ADMIRALTY JURISDICTION OVER MARITIME TORTS

LARS CHRISTOPHER (WORLD ECONOMIC FORUM)

GRUBART v. GREAT LAKES DREDGE & DOCK CO., 513 U.S. 527 (1995)

MARITIME TORT IS ONE THAT:• (1) OCCURS ON A VESSEL ON

NAVIGABLE WATERS; AND • (2) IS EITHER DISRUPTIVE TO

MARITIME COMMERCE OR RELATED TO MARITIME ACTIVITIES

• INCLUDES COLLISIONS, INJURIES, AND INCIDENTS WHERE DAMAGE IS CAUSED BY A VESSEL ON NAVIGABLE WATERS THOUGH INJURY OR DAMAGE IS CONSUMMATED ON LAND (OR ARTIFICIAL ISLAND)

• ADMIRALTY SUITS (EXCEPT PERSONAL INJURIES) ARETRIED BY A JUDGE (NO JURY)

• STATE LAW SUPERSEDED BY SUPREMACY CLAUSE TO ACHIEVE UNIFORMITY, ALLOWS PREDICTIBILITY

• CAN ARREST VESSEL IN REM

• LIMITATION OF SHIPOWNERS’ LIABILITY MAY BE AVAILABLE(46 U.S.C. § 30501 ET SEQ.)

MARITIME LAW BASICS

SO, IS IT A VESSEL?

REASONS OF IMPORTANCE:• ADMIRALTY JURISDICTION

EXTENDS TO CASES OF INJURY OR DAMAGE, TO PERSON OR PROPERTY, CAUSED BY A VESSEL ON NAVIGABLE WATER

• NEITHER A MARITIME LIEN NOR PREFERRED SHIP MORTGAGE CAN ATTACH TO PROPERTY THAT IS NOT A VESSEL (OR ONBOARD A VESSEL)

• VESSEL OWNER CAN FILE FOR LIMITATION OF LIABILITY

• PERSONAL INJURY REMEDIES AVAILABLE TO SEAFARERS = MEMBER OF VESSEL’S CREW

• CREW MEMBERS OF A VESSEL NOT ENTITLED TO LHWCAREMEDIES

DEEPWATER HORIZON

VESSEL DEFINITION . . .• 1 U.S.C. § 3: “VESSEL” INCLUDES

EVERY DESCRIPTION OF WATERCRAFT OR OTHER ARTIFICIAL CONTRIVANCE USED, OR CAPABLE OF BEING USED, AS MEANS OF TRANSPORTATION ON WATER.

• 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.

• WATERCRAFT NEED NOT BE IN MOTION TO QUALIFY AS A VESSEL, BUT MAY LOSE ITS VESSEL STATUS IF WITHDRAWN FROM THE WATER FOR AN EXTENDED TIME, PERMANENTLY ANCHORED, OR TAKEN OUT OF SERVICE

STEWART V. DUTRACONSTRUCTION, 543 U.S. 481

(2005)

. . . VESSEL DEFINITION

• HOWEVER, NOT EVERY FLOATING STRUCTURE IS A VESSEL.

• U.S. SUPREME COURT ADOPTS A “REASONABLE OBSERVER” TEST

• A STRUCTURE IS A VESSEL IF “A REASONABLE OBSERVER, LOOKING TO [ITS] PHYSICAL CHARACTERISTICS AND ACTIVITIES, WOULD CONSIDER IT DESIGNED TO A PRACTICAL DEGREE FOR CARRYING PEOPLE OR THINGS OVER WATER”

• DON’T CONSIDER “THE SUBJECTIVE INTENT OF THE OWNER”

LOZMAN V. CITY OF RIVIERA BEACH, 568 U.S. 115 (2013)

PROF. STURLEY’S “REASONABLE OBSERVER” STANDARD JUST FOR

“BORDERLINE” CASES?NEW TECHNOLOGY CASES?

• FLOATING WIND TURBINES NOT CONSIDERED VESSELS BECAUSE THEY LACK SELF-PROPULSION, ARE MOORED TO THE OCEAN FLOOR, AND FAIL THE REASONABLE OBSERVER TEST?

• IN CONTRAST, JACK-UP STRUCTURES USED FOR TURBINE INSTALLATION CONSIDERED VESSELS EVEN WHILE ATTACHED TO THE OCEAN FLOOR?

• PARALLELS FROM 5TH CIR. OIL/GAS CASES THAT HOLD JACK-UP RIG IS A VESSEL, BALONEY v. ENSCO OFFSHORE CO., 570 FED. APPX. 423 (5TH CIR. 2014), AND STATIONARY OIL PLATFORM IS NOT, BAKER v. DIR., OWCP, 834 F.3D 542 (5TH CIR. 2016).

• BUT 1ST, 2ND, 3RD, 4TH CIRCUITS IN NORTHEAST U.S.?

NATIONAL RENEWABLE ENERGY LABORATORY

. . . SO, IS IT A VESSEL?

OFFSHORE WIND SUPPLY VESSELS

“OSV” IS THE COLLECTIVE TERM FOR

ANY VESSEL THAT REGULARLY CARRIES

GOODS, SUPPLIES, PERSONS, OR EQUIPMENT IN SUPPORT OF OFFSHORE

DEVELOPMENT

SIEMENS GAMESA RENEWABLE ENERGY

46 C.F.R. § 125.160 DEFINES “OSV” AS A VESSEL:

(1) PROPELLED BY MACHINERY OTHER THAN STEAM, IS NOT A PASSENGER VESSEL, IS MORE THAN 15 GROSS TONS, AND

(2) REGULARLY CARRIES GOODS, SUPPLIES, INDIVIDUALS IN ADDITION TO THE CREW, OR EQUIPMENT IN SUPPORT OF EXPLORATION, EXPLOITATION, OR PRODUCTION OF OFFSHORE ENERGY RESOURCES.

ANY VESSEL ENGAGED IN OCS ACTIVITY IS SUBJECT TO USCG INSPECTION

OFFSHORE WIND SUPPORT VESSELS

MARITIME EXECUTIVE / KEPPEL

CREW TRANSFERVESSEL (CTV)

• CARRY CREW TO OFFSHORE WIND TURBINE INSTALLATIONS

WIND TURBINE INSTALLATION VESSEL (WTIV)

• TURBINE INSTALLATION AND CONSTRUCTION SERVICES

OFFSHORE SUPPLY VESSELS

SERVICE OPERATIONS VESSEL (SOV)• OPERATE AS FIELD

ACCOMMODATIONS FOR WORKERS AND PLATFORM ASSIST FOR WIND TURBINE SERVICING AND REPAIR WORK

FEEDER SUPPORT VESSELS (FSV)• CARRY DECK CARGO

SUCH AS TURBINES AND BLADES TO THE INSTALLATION VESSEL AND PROVIDE ACCOMMODATIONS FOR 50+ PERSONNEL.

OFFSHORE SUPPLY VESSELS

LIFTBOATS• USED AS SOVs AND

FSVs CLOSER TO SHORE AND IN SHALLOWER WATERS

FIELD DEVELOPMENT VESSEL (FDV) FIELD INSTALLATION VESSEL (FIV) • DESIGNED TO LAY CABLES

CONNECTING OFFSHORE WIND STRUCTURES WITHIN THE FIELD AND CABLES CONNECTING THOSE STRUCTURES TO THE SHORE

OFFSHORE SUPPLY VESSELS

CAPITAL CONSTRUCTION FUND

MERCHANT MARINE ACT OF 1970 (46 C.F.R. PART 390)

• CREATED THE CAPITAL CONSTRUCTION FUND (CCF) TO HELP REJUVENATE THE AMERICAN MERCHANT MARINE

• ADMINISTERED BY MARITIME ADMINISTRATION (MARAD)

• EXTENDS TAX DEFERRAL PRIVILEGES, ALLOWING PARTICIPANTS TO ACCUMULATE AND USE OTHERWISE TAXABLE EARNINGS FOR THE PURPOSES OF ACQUIRING, CONSTRUCTING OR RECONSTRUCTING JONES ACT VESSELS

PART ONE: CABOTAGE

THE MERCHANT MARINE ACT OF 1920

PART TWO: INJURED SEAFARERS’ REMEDY

PART ONE: U.S. CABOTAGE RESTRICTIONS

THE JONES ACT- PART ONE -

46 U.S.C. § 55102

PASSENGER VESSEL SERVICES ACT46 U.S.C. § 55103

TOWING STATUTE46 U.S.C. § 55111

DREDGING ACT46 U.S.C. § 55109

COASTWISELAWS

ANY VESSEL USED FOR THE TRANSPORTATIONOF MERCHANDISE OR PASSENGERS BETWEEN U.S. POINTS OR FOR DREDGING MUST BE:

(1) “WHOLLY OWNED” BY U.S. CITIZENS

(2) USCG DOCUMENTED WITH COASTWISE ENDORSEMENT (BUILT IN US AND US CREW)

US BUILT, FLAGGED, CREWEDOR

BIG $ PENALTIES

SENATOR WESLEY JONES(R-WA)

JANUARY 1, 2021 GARAMENDI AMENDMENT TO OUTER CONTINENTAL SHELF LANDS ACT OF 1953

(OCSLA)VIA AMENDMENT 33, NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2021, 43 U.S.C. § 1333(a)(1)(A)(iii)

• FOUR WORDS, “INCLUDING NON-MINERAL ENERGY RESOURCES,” ADDED TO DEFN OF AN OUTER CONTINENTAL SHELF “INSTALLATION OR OTHER DEVICES PERMANENTLY OR TEMPORARILY ATTACHEDTO THE SEABED”

• THE GARAMENDI AMENDMENT CLOSED THE POTENTIAL LOOPHOLE FOR OFFSHORE WIND FARMS BY FORMALLY DESIGNATING THESE AS OCS SITES COVERED BY COASTWISE LAWS – ENHANCING UNIFORMITY AND PREDICTABILITY

• SO OFFSHORE OIL AND GAS PRECEDENT FOR CBT . . . BUT USCG AND OTHER AGENCIES?

COASTWISE LAWS

HTTPS://RULINGS.CBP.GOV “CROSS”CUSTOM RULINGS ONLINE SEARCH SITE

AUG. 31, 2020: HQ H311603- CBP RULED ON BLOCK ISLAND WIND FARM

REPLACEMENT OF SUBMARINE ELECTRIC CABLES

- NEITHER RETRIEVAL OF OLD NOR LAYING OF NEW BY HONG KONG VESSEL VIOLATES JONES ACT

- CABLE LAYING IS NOT TRANSPORTATION OF MERCHANDISE BECAUSE CABLE “IS NOT LANDED AS CARGO BUT IS ONLY PAID OUT IN THE COURSE OF THE LAYING OPERATION”

- NO VIOLATION OF DREDGING STATUTE EITHER

RECENT CBPRULINGS

COASTWISE LAWS

JAN. 27, 2021: HQ H309186- JONES ACT APPLIES TO

OCS VINEYARD WIND PROJECT

- “SCOUR PROTECTION” (ROCKS) IS MERCHANDISE

- NEED COASTWISE QUALIFIED TUG AND BARGE

FEB. 4, 2021: HQ H316313- DANISH JACK UP VESSEL IS

A COASTWISE POINT- BECAUSE STATIONARY, CAN

INSTALL VINEYARD WIND TURBINES

- ALSO CAN CARRY "VESSEL EQUIPMENT" AND CREW BETWEEN INSTALLATION SITES (NEITHER MERCHANDISE NOR PASSENGERS)

RECENT CBPRULINGS

COASTWISE LAWS

MAR. 25, 2021: HQ H317289- JAN. 27 RULING MODIFIED- “PRISTINE SEABED” IS NOT

A COASTWISE POINT SO DUTCH FLAGGED SCOUR PROTECTION DUMPING OK

- BUT JONES ACT WILL APPLY “ONCE A COASTWISE POINT IS ESTABLISHED ON THE SEABED OF THE OCS.” SEE ALSO RADTKE V. CBP, D. D.C. NO. 17-CV-02412 (PENDING)

JULY 6, 2021: HQ H318739- MAINE ASSEMBLY OF FWT

HULL IS MERCHANDISE BUT HULL’S ASSEMBLY & NON-TRANSPORTATION ON FOREIGN BARGES IS OK UNDER JONES ACT

RECENT CBPRULINGS

THE JONES ACT

- PART TWO -

SEAFARERS’ REMEDY

IN RESPONSE, CONGRESS IN 1920 INCLUDED THIS REMEDY WHEN IT ENACTED THE JONES ACT:

“A SEAMAN INJURED IN THE COURSE OF EMPLOYMENT . . . MAY ELECT TO BRING A CIVIL ACTION AT LAW, WITH THE RIGHT OF TRIAL BY JURY, AGAINST THE EMPLOYER.”46 U.S.C. § 30104

HISTORICALLY, SEAFARERS COULD NOT RECOVER FOR THE NEGLIGENCE OF THEIR EMPLOYERS OR FELLOW CREW.

THE JONES ACT

- PART TWO -

SEAFARERS’ REMEDY

ATLANTIC SOUNDING CO. V. TOWNSEND,557 U.S. 404 (2009)

PASSAGE OF JONES ACT DID NOT ELIMINATE ANCIENT REMEDIES AVAILABLE TO INJURED SEAFARERS

MAINTENANCE AND CUREEMPLOYER, WHO MAY OR MAY NOT BE VESSEL OWNER, IS STRICTLY LIABLE TO PROVIDE MAINTENANCE AND CURE TO SEAFARERS WHO BECOME INJURED OR SICK WHILE IN THE SERVICE OF THE VESSEL.

WARREN v. UNITED STATES, 340 U.S. 523 (1951)

UNSEAWORTHINESSBOTH THE VESSEL (IN REM) AND ITS OWNER ARE STRICTLY LIABLE FOR INJURIES RECEIVED BY A SEAFARER IN CONSEQUENCE OF ANY UNSEAWORTHY CONDITION OF THE VESSEL

MITCHELL v. TRAWLER RACER, INC., 362 U.S. 539 (1960)

CASES OF NOTE

McDERMOTT INT’L, INC. v. WILANDER, 498 U.S. 337 (1991)

CHANDRIS, INC. v. LATSIS, 515 U.S. 347 (1995)

HARBOR TUG & BARGE CO. v. PAPAI, 520 U.S. 548 (1997)

ESSENTIAL REQUIREMENTS:

1. MUST WORK ON A VESSEL (OR FLEET OF VESSELS)

2. DUTIES MUST CONTRIBUTE TO FUNCTION OF THE VESSEL OR ITS MISSION

3. CONNECTION TO VESSEL MUST BE SUBSTANTIAL IN DURATION (30% OR MORE)

4. REGULAR EXPOSURE TO PERILS OF SEA

SO, IS THE INDIVIDUAL A SEAFARER?

LONGSHORE AND HARBOR WORKERS

COMPENSATION ACT (LHWCA)

33 U.S.C. § 901 ET SEQ.

STATUS AND SITUS REQUIREMENTS:

(1) ENGAGED IN MARITIME EMPLOYMENT (E.G., LOADING/UNLOADING OR REPAIRING VESSEL);

(2) INJURED ON (OR ADJACENT TO) NAVIGABLE WATERS

PROVIDES A WORKERS COMPENSATION REMEDY AGAINST THE EMPLOYER FOR SOME “LAND-BASED” MARITIME WORKERS WHO DO NOT QUALIFY AS JONES ACT SEAFARERS

OUTER CONTINENTAL SHELF LANDS ACT (OCSLA), 43 U.S.C § 1333(B) EXTENDS LHWCABENEFITS TO OFFSHORE WORKERS

OCSLA DOES NOT APPLY TO VESSELS BUT CAN APPLY TO JACK UP RIG WHEN THE RIG IS JACKED UP AND ITS LEGS ARE RESTING UPON THE OCS, EVEN TEMPORARILY –

SO, JONES ACT NEGLIGENCE FOR CREW;LHWCA FOR NON-CREW MARITIME WORKERS

43 U.S.C. § 1333(b) “…. With respect to disability or death of an employee resulting from any injury occurring as the result of operations, conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources, or involving rights to the natural resources, of the subsoil and seabed of the outer Continental Shelf compensation shall be payable under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act.”

Does OCSLA not incorporate LHWCA for Wind Farms?• Disuniformity – no insurer predictability• Look to varying state court workers’ comp schemes for

injured non-Jones Act seafarer OSW workers, absent Congressional amendment?

• Pac. Operators Offshore, LLP v. Valladolid, 565 U.S. 207 (2012)(“substantial nexus” ˃ “as the result of”)

CASES OF NOTE

SEAS SHIPPING CO. v. SIERACKI, 328 U.S. 85 (1946)

RIVERA v. KIRBY OFFSHORE MARINE, L.L.C., 983 F.3D 811 (5TH CIR. 2020)

SIERACKISEAFARERS

CERTAIN NON-SEAFARERS, NOT COVERED BY LHWCA, MAY BE ABLE TO MAINTAIN UNSEAWORTHINESS ACTIONS AGAINST THE VESSEL OWNER

APPLICABLE TO INDEPENDENT CONTRACTORS WHO ARE REGULARLY EXPOSED TO THE PERILS OF THE SEA, BUT FAIL TO MEET THE DEFINITION OF JONES ACT SEAFARER BECAUSE THEY LACK THE REQUIRED SUBSTANTIAL CONNECTION WITH ANY PARTICULAR VESSEL OR FLEET (E.G., HARBOR PILOTS…?)

MARITIME LAW ASSOCIATION

OFTHE UNITED STATES

BOSTON FALL MEETINGNOVEMBER 3-6, 2021

OFFSHORE INDUSTRIES

COMMITTEE MEETING

NOVEMBER 3, 2021 3:00PM

WWW.MLAUS.ORG