Following the DEEPWATER HORIZON incident, our office has talked with several people who have asked if it is a good idea to accept a company-offered settlement which may also include being able to return to work at a later date. These individuals want to know if the company offers a relatively fair amount of money along with continued employment, is this the best path to choose for them. We have advised these individuals that unfortunately this may not be the best way to resolve their claim.
First, any efforts to return to work at a later date are very uncertain at this point. After what the rig workers went through on the DEEPWATER HORIZON it is possible that most of them will have great difficulty returning to offshore maritime work. They will not know this until they actually make efforts to return to work at a later date. Any company offering a settlement and continued employment will, in all likelihood, require that the employee sign a full release prior to returning to work. If you are being asked to sign a full release prior to attempting to return to work, you should never do so, since you do not know for sure if you will be successful in returning to work until you actual spend time out there.
In many cases individuals may attempt to return to work only to find that they are not able to do so either physically or emotionally. If these individuals have resolved their claims then they will not have any type of recourse or ability to collect lost wages in the event they are ultimately unable to return to work. In short, a fast, early settlement with any company involved in the DEEPWATER HORIZON accident is dangerous because you may not yet know if you are able to return to work offshore.
Finally, in regard to fast settlements from any companies involved in the incident, it is too early to tell which parties are fully at fault for the accident. Anyone working on the rig may have the ability to file claims against multiple parties. This is important because often the best settlements can be attained for an individual when multiple parties are at fault for a particular accident. Since each party may bear full responsibility for the accident, often each party is willing to offer a very fair settlement which ultimately results in an excellent resolution for the individual. In other words you may be entitled to money from several of the parties involved and not just the party offering the settlement. In fact, the party offering the settlement to you may actually be reimbursed at a later date from other parties involved in the DEEPWATER HORIZON accident.
Although a situation such as the DEEPWATER HORIZON may appear simple, in reality there are always more complicated issues to consider before accepting a quick, fast settlement. It is understandable that some of the individuals will simply want to “move on” and get back to work as soon as possible. However there is no need for them to accept any type of quick, fast settlement in order to attempt to return to work. If any company tells you that you must sign a full release before you are allowed to return to work with them, they are clearly not being honest with you. You may return to work for your employer without settling any type of claim arising out of the incident. If you find that you are not able to continue working offshore, then you are still entitled to pursue a full claim against your company and other companies as long as your claim is timely filed and you have not released or settled with any parties.
The DEEPWATER HORIZON was technically considered a “vessel” under maritime law. Even though the structure was an oil rig, it was subject to Coast Guard regulations as a vessel. In all likelihood, maritime law will apply to environmental claims and business claims arising out of oil that affects the Gulf Coast coastline. Our office focuses on maritime law. Assuming maritime law ultimately applies to all claims, it does not make a difference if your damage occurred along the coast in Mississippi, Alabama, Louisiana or Florida. Ultimately a single body of law (maritime law) will be applied to all damage claims for loss of business income as well as property damage or clean up costs.
Obviously the value of each case depends upon the facts of the case, but in the DEEPWATER HORIZON situation, liability or fault for the accident will not be contested. The main issue for each person’s claim will be determining and proving the nature and extent of damages that an individual has suffered due to the rig explosion.
A particular concern involves the emotional injuries suffered by individuals. It is important that these individuals obtain expert counseling not only to help them and their families through the situation, but to also document the difficulty that they are having following the accident. Months from now, the medical records of these individuals will be very important to show what they have been through as a result of the rig accident. While it is horrible to think about such steps today and over the next few weeks, it is even more horrible to think that the companies involved in causing this tragedy may try to deny these serious claims if medical records are not available. If such emotional difficulties prevent the individual from returning to offshore work, the individual may suffer significant wage losses into the future that can quickly amount to hundreds of thousands of dollars.
For cases involving actual physical injuries, if the individual is unable to return to work offshore, this too can amount to an economic loss of hundreds of thousands of dollars very quickly. This amount is in addition to the ‘general’ damages awarded for pain and suffering, both physical and emotional.
All individuals working on the rig are entitled to seek pain and suffering damages, both physical and emotional, full medical expenses from a doctor or doctors they choose, lost wages and fringe benefits including loss of insurance and retirement benefits, and any other losses directly related to the event. Often individuals with serious injuries will need to hire others to do the daily chores round the house such as yard work or house repairs. These amounts can add up quickly and can be calculated using an economist.
While time has passed since the tragic events of the Deepwater Horizon explosion in the Gulf of Mexico, the effects continue to linger. The “Offshore Diver” website tells a disturbing story concerning the health of three science divers.
After being told it was safe, the three divers were working underwater in the Gulf when they began to notice disturbing symptoms. By October of 2010, all three were sick and stopped diving. Collectively, their symptoms included:
These symptoms would come and go one at a time, and the divers began to search for a diagnosis and medical help. Finally, in January of 2011, their blood test results showed the cause for their illness. Corexit and ethyl benzene were found in alarming amounts In the divers’ blood.
Corexit is a line of solvents used to clean up oil slicks, used extensively in the Deepwater Horizon incident. Combined with the BP oil itself, the divers claim they were exposed to numerous carcinogenic compounds. While under treatment, the divers fear ongoing health problems caused by diving in the contaminated water. They suggest that anyone suspecting contamination illness, which can be as severe as cancer, to contact the Louisiana Environmental Action Network.
Due to the very nature of the HORIZON rig explosion, it is anticipated that all employees will suffer some type of serious emotional stress and suffering. It is hard to imagine what the situation was like and what the workers went through. Some of these claims will be very, very serious. It is not uncommon for offshore employees to have trouble returning to work following a life-threatening incident such as the rig accident. In such situations, this type of mental injury can be just as serious as a physical injury.
Our office has handled cases emergency evacuation type cases after which individuals were unable to return to working offshore or on the water. Because of this condition, these individuals lost significant wages into the future. We have been fortunate and able to collect large settlements for these individuals based upon their lost wages over their lifetime.
The recent explosion on the DEEPWATER HORIZON immediately brought to mind 3 ways Transocean may try to protect itself through the legal system. Unfortunately these tactics will help Transocean, not the injured employees.
1) Fast, Low Value Settlements: This is the most obvious method. Transocean may offer lots of quick settlements to families struggling after the tragedy. The value of their claims cannot be underestimated. The law may even allow for punitive damages. Also, some emotional injuries and even physical injuries may not be known for months. Quick settlements favor the company, not the injured party.
2) Filing A Limitation Of Liability Claim: This old law allows a ship owner to try to limit the amount he must pay for claims to the value of the vessel. While the DEEPWATER is a very expensive rig, the real benefit of doing this is to require all claims to be filed in the same court, most likely New Orleans. We fight these often. (We have been told by sources that this may have already been done the day after the accident!)
3) Controlling The Medical Treatment for Employees: Many of our readers and clients know this method well. This can be especially tricky if the claims involve serious emotional injuries as these claims no doubt will.
It is anticipated that a Limitation of Liability proceeding will be filed by Transocean as the owner of the DEEPWATER HORIZON. In this situation, all claims must be filed through the Limitation of Liability proceeding. There are exceptions and legal strategies that can be used to possibly determine the value of your claim outside of the Limitation proceeding, but all claims must to some extent be presented in the Limitation proceeding. This also includes the claims of other companies against each other for the damages suffered due to the explosion and fire. There are many parties that may be responsible for the explosion and all of these individuals should be named in any claim that is filed. This will occur automatically if your claim is filed in a full Limitation proceeding which will necessarily involve all parties.
In regard to your rights against certain parties, technically your employer owes certain duties to you that third-party companies may not owe to you. However, since liability and fault should not be an issue at all in regard to your claim, the most significant part of your claim will be proving your damages in court. You may also be able to collect different types of damages from different parties, especially in regard to punitive damages.
If your claim is handled properly, it is often possible to obtain a significant recovery from each of the many parties which may be responsible for the explosion. By doing this type of multiple-party settlement, often individuals can receive full, more than adequate compensation for what they have suffered which includes payment of full loss of future wages, payment of medical expenses and a significant and proper award for physical and emotional suffering.
A federal judge in New Orleans was chosen last week to preside over the more than 300 lawsuits filed against BP, Transocean, and Halliburton and Cameron International over the April 20 explosion of the Deepwater Horizon oil rig.
The U.S. Judicial Panel on Multidistrict Litigation ordered that 77 cases plus more than 200 potential “tag-along” actions will be transferred to U.S. District Judge Carl Barbier. The panel determined that New Orleans is the best place for the litigation because “Without discounting the spill’s effects on other states, if there is a geographic and psychological ‘center of gravity’ in this docket, then the Eastern District of Louisiana is closest to it.”
BP favored having the law suits heard in Houston, where its U.S. operations are based. Three lawsuits filed by BP shareholders over stock losses will be heard by U.S. District Judge Keith Ellison in Houston.
The lawsuits that will be heard in New Orleans include Jones Act and DOHSA claims filed by relatives of workers killed in explosion. Other suits that will be heard have been filed on behalf of shrimpers, commercial fishermen, charter captains, property owners, environmental groups, restaurants, hotels and others who claim they have suffered economic losses since the spill.
Only four New Orleans-based federal judges are available to hear the cases because some federal judges have reclused themselves because of their oil and gas industry investments.
Horizon Lines, LLC has pled guilty to felony charges regarding violations of national and international oil pollution laws and has been ordered to pay $1.5 million as part of its plea deal. Environmental projects in the San Francisco Bay Area will receive $500,000.
The charges included 2 counts of making false statements about their Oil Record Book, a ledger that is supposed to maintain accurate records of all transfers and discharges of oil and oily waste. According to the charges, S/S Horizon Enterprise engineers willfully tampered with pollution control equipment designed to prevent oily waste from being released into the ocean and made false entries in their Oil Record Book in an attempt to mislead the U.S. Coast Guard into believing that the ship was in compliance.
In addition, Horizon Lines, LLC has been required to institute a comprehensive environmental compliance plan to mitigate the possibility of further wrongful conduct, which the company admitted has occurred multiple times over the past several years.
Hazardous materials can pose a threat to both the environment and maritime workers. Exposure to toxic substances can leave a maritime employee stricken with lung complications and other serious disorders. The chemicals in oil waste and dispersants can affect not only the respiratory system, but also the liver, kidneys, metabolism, and the circulatory, immune, musculoskeletal, skin, nervous, reproductive, endocrine, sensory, and gastrointestinal systems.
The April 21 explosion of the Deepwater Horizon oil rig which killed eleven men is not the first high-profile to occur at a BP facility. In the past 20 years, BP subsidiaries have been convicted three times of environmental crimes in Alaska and Texas, including two felonies.
In 2005, 15 BP employees died and 170 were injured after an explosion at a Texas City, Texas refinery. Temporary trailers that were used as office buildings had been placed next to highly volatile units producing jet fuel. The investigation showed a need for maintenance and better safety devices at the refinery.
In 2006, the BP pipeline in Prudhoe Bay, Alaska burst spilling hundreds of thousands of galloms of heavy crude oil. No one was injured. The investigation found that in order to reduce costs, BP had cut the practice of sending probes through the pipeline to clean and inspect the pipes for damage and corrosion.
BP has received the biggest-ever fine for “willful work safety violations” in the United States and is under of a range of safety investigations, including one in Washington state for 13 serious safety violations at the BP Cherry Point refinery near Ferndale, Washington.
Yesterday (Saturday April 24th, 2010) I had the pleasure of speaking with the captain of a small charter fishing vessel which was in the Gulf of Mexico approximately 15 miles from the DEEPWATER HORIZON site at the time of the fire and explosion. This vessel was the second vessel to respond to the incident and it hurried to the site to help the rig workers.
Captain Scott Russell was in the Gulf for a night of tuna fishing when he saw an enormous fire ball about 15 miles in the distance. He turned to his friend Bradley who was also fishing with him on the vessel and commented that something was not right. Several seconds later they both heard a loud ‘boom’. They immediately started running their boat towards the scene and they monitored the radio. They actually heard the calls of abandoning ship from the HORIZON.
They stayed around the rig site for several hours helping the Coast Guard and other vessels help rig workers out of the water. When asked what surprised them most, they commented that the heat from the rig fire was tremendous and they had trouble getting the vessel close to the rig. They also noticed many smaller ‘explosions’ going off as the rig burned.
These men voluntarily rushed to the site to help in any way they could. They stayed close by without knowing what could happen, and they helped many rig workers out of the water. Clearly they stepped up and this tragedy brought out the best in them trying to help others. (And if anyone is thinking we should thank these guys, don’t worry, I did several times).
Bradley took several photos which are below.
As of mid-April, the USCG ended operations and patrols on the last three Louisiana shoreline miles, which closed the four-year active cleanup of the Deepwater Horizon oil spill. However, Coast Guard personnel are still pre-positioned to investigate further reports of oil-based matter that arise. Similar operations had already ended in the summer of 2013 for Alabama, Florida, and Mississippi.
In combination with early restoration projects and many natural recovery processes, the cleanup effort has helped the Gulf region return to close to its baseline condition, or the condition in which it would be if the spill had never happened.
Said BP’s executive vice president for Response and Environmental Restoration, Laura Folse, “BP has spent more than $14 billion and more than 70 million personnel hours on response and cleanup activities. Even though active cleanup has ended, we will keep resources in place to respond quickly at the Coast Guard’s direction if potential Macondo oil is identified and requires removal.”
Captain Thomas Sparks, the federal on-scene coordinator (FOSC), conveyed, “Our response posture has evolved to target re-oiling events on coastline segments that were previously cleaned. But let me be absolutely clear: This response is not over – not by a long shot. The transition to the Middle Response process does not end clean-up operations, and we continue to hold the responsible party accountable for Deepwater Horizon cleanup costs.”
Sparks went on to express that the “Middle R” process does require continued, focused response personnel and equipment, which helps to reduce the impact on the coastal environment. “Middle R” is a term that describes the NRC process of responding to oiling reports along the gulf with pre-positioned USCG teams for rapid response and Oil Spill Removal Organizations on standby. This process is currently being used for over 3,000 miles of shoreline along the coasts of Louisiana, Florida, Mississippi, and Alabama.
Over the last several years, Coast Guard personnel have responded to nearly 1,100 suspected Deepwater Horizon NRC reports, and they have supervised the cleanup of over 5,000 pounds of oily matter since June of 2013.
According to Sparks, “We are absolutely committed to continuing the clean-up of Deepwater Horizon oil along the Gulf – for as long as it takes, and to surge as necessary and as the situation dictates.”
In a gCaptian podcast from June 9th, Jeff Eckles talks to gCaptain founder, John Konrad, about the Deepwater Horizon spill and a new report from the Chemical Safety Board (CSB) on the incident.
Captain Radio Episode 48: Are Rigs Safer Since the Deepwater Horizon Disaster?
According to John Konrad, who wrote an in depth book about the disaster, the new report addresses whether or not conditions in the Gulf have improved now that a few years have passed, and if we have made the right progress to prevent such incidents from happening again in the future. Konrad points out that many people are still nervous, and that the report indicates that conditions are not necessarily any safer now than they were in 2010.
While the CSB report investigates the technical failures that led to the disaster, Konrad suggests that no one individual person did anything criminally negligent. It was an accident that happened for specific reasons, but as you pull away and see all the individuals acting together, there is a strong case that BP or the drilling industry had some criminal culpability. In every large corporation, he notes, we see incidents of product failure; however, when a product fails with a company like BP, there can be a major catastrophe.
Technical failure, training and overworked mariners
In the case of the Deepwater Horizon disaster, there was a crimp in a pipe that led to the accident. Even now, if that same crimp occurred, the new procedures that we have instituted would not prevent the same type of disaster from happening. It was not just a technical failure, Konrad asserts, but also a matter of overworked mariners.
As a company, conveys Konrad, BP spends more on safety than almost anyone else. But their focus prior to the Deepwater Horizon spill was on minor incidents, injuries, spills, etc. They did not spend much money on major disasters – their theory being that if you do the right small things, big things will not be a problem. But in reality, you need to cover both.
Training and experience also played a role. The crew involved in the BP disaster had better training and experience than most crews; however, when you double or triple the size of your fleet, where is the new crew coming from? The crew in question was overworked and they were dealing with overly-complicated technology.
The government’s response to the disaster is that we need to increase regulations to increase safety, which translates into already over-worked mariners with a paperwork load that is now doubled.
What about the dispersant?
Good arguments can be made for the fact that the ocean can deal with dispersing small amounts of oil – but not billions of gallons. So why was the decision made to spray those manmade chemicals into the Gulf?
Konrad points out that the reports generally miss the critical fact of why the chemicals were used. They were not used for PR or to eliminate the oil; rather, they were introduced because to stop the spill, relief wells needed to be drilled into the existing well to alleviate the pressure. In doing so, workers were able to stop the oil from bubbling up to where the working vessels were operating. If dispersants were not used, the relief well would not have been possible. The damaging chemical was released sub-sea, which gave it time to mix with the ocean. However, it was only released sub-sea at the site of the rig.
According to the new, two volume draft investigation report, released on June 5th, the blowout preventer (BOP) that was supposed to shut down the flow of high-pressure gas and oil from the Macondo well in the Gulf, failed to seal the well because the drill pipe buckled.
The blowout that resulted caused explosions and fire aboard the Deepwater Horizon rig, which led to the death of 11 workers, and the serious injury of 17. Almost 100 others escaped the rig, which sank two days later, leaving the well spilling gas and oil into the Gulf of Mexico for 87 days. The failure of the BOP was directly responsible for the spill and contributed to the severity of the accident on the rig itself.
The CSB report conveys that the pipe buckling occurred during the first moments of the blowout, when the crew was desperately trying to grasp control of the gas and oil pouring out of the well. Though some investigations note that the drill pipe was buckled when it was found, this was previously assumed to have happened days after the blowout was underway.
The CSB draft report concludes that the BOP’s blind shear ram, which is an emergency hydraulic device with sharp blades used to seal a spilling well, probably didactivate on the night of the disaster. The pipe buckling that occurred on April 20, however, prevented the blind shear ram from working correctly. In fact, the shear ram probably punctured the buckled pipe, which sent even more oil and gas spilling to the surface.
The big question that the report asks is, “Are we safer now?” Says Dr. Rafael Moure-Fraso, CSB chairperson, “Although both regulators and the industry itself have made significant progress since the 2010 calamity, more must be done to ensure the correct functioning of blowout preventers and other safety-critical elements that protect workers and the environment from major offshore accidents.”
CSB investigator Cheryl MacKenzie adds, “Our investigation has produced several important findings that were not identified in earlier examinations of the blowout preventer failure. The CSB team performed a comprehensive examination of the full set of BOP testing data, which were not available to other investigative organizations when their various reports were completed. From this analysis, we were able to draw new conclusions about how the drill pipe buckled and moved off-center within the BOP, preventing the well from being sealed in an emergency.”
One central technical finding of the report was the identification of the new buckling mechanism for the drill pipe (“effective compression”). The report states that the effective compression phenomenon could compromise the proper working of the other blowout preventers that are still deployed around the world at various offshore wells. The CSB details the complete BOP failure scenario in a computer video animation released with the report.
Effective compression occurs when there is a significant pressure difference between the outside and the inside of a pipe. This is likely what occurred during the emergency response measures taken by the crew on the Deepwater Horizon on the night of April 20, when the operators closed BOP pipe rams at the wellhead. Unfortunately, the result was a large pressure difference that buckled the steel drill pipe inside the BOP, bending it beyond the reach of the BOP’s blind shear ram.
Dr. Mary Beth Mulcahy who oversaw the technical analysis on the report states, “The CSB’s conclusions are based on real-time pressure data from the Deepwater Horizon and calculations about the behavior of the drill pipe under extreme conditions. The findings reveal that pipe buckling could occur even when a well is shut-in and apparently in a safe and stable condition. The pipe buckling – unlikely to be detected by the drilling crew – could render the BOP inoperable in an emergency. This hazard could impact even the best offshore companies, those who are maintaining their blowout preventers and other equipment to a high standard. However, there are straightforward methods to avoid pipe buckling if you recognize it as a hazard.”
The report reveals that while Deepwater Horizon workers regularly tested and inspected the BOP components for everyday drilling operations, neither BP nor Transocean had performed inspections or testing for failures of the emergency systems, resulting in the safety-critical systems being compromised before the BOP was ever deployed to the wellhead. The report identifies mis-wirings and battery failures within the subsea control equipment as evidence of the need for further testing, management, and identification of safety devices.
Conveys Investigator MacKenzie, “Although there have been regulatory improvements since the accident, the effective management of safety critical elements has yet to be established. This results in potential safety gaps in U.S. offshore operations and leaves open the possibility of another similar catastrophic accident.”
The report, subject to Board approval, recommends a requirement that ensures drilling operators effectively manage operational, technical, and organizational safety-critical elements to minimize major accident risks. Investigator MacKenzie expresses, “Although blowout preventers are just one of the important barriers for avoiding a major offshore accident, the specific findings from the investigation about this BOP’s unreliability illustrate how the current system of regulations and standards can be improved to make offshore operations safer.”
The report also makes recommendations to the American Petroleum Institute. The CSB recommends that they revise API Standard 53, “Blowout Prevention Equipment Systems for Drilling Wells”, requesting critical testing of the redundant control systems inside BOP’s. They also recommend new guidance for the management of safety-critical elements in general.