In a stark reminder of the sanctity of Coast Guard investigations, and the consequences of impeding such investigations, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) recently took action against a maritime employer for allegedly retaliating against a seaman who cooperated with the Coast Guard in connection with its investigation of a maritime casualty. On October 20, 2017, Bouchard Transportation’s ATB BUSTER BOUCHARD/B. NO. 255 suffered an explosion and fire while transporting roughly 2,000 barrels of oil off Port Aransas, Texas. Two crewmembers perished as a result of the casualty. The brother of one of the deceased crewmembers, who also happened to be a Bouchard Transportation employee, cooperated with the Coast Guard in the ensuing investigation. Three months later, the surviving brother was terminated without explanation. OSHA found the termination constituted a retaliatory discharge in violation of the Seaman’s Protection Act (46 U.S.C. §2114) (the “SPA”). In broad terms, the SPA prohibits maritime employers from terminating or discriminating against seamen who cooperate with Coast Guard, Department of Labor or National Transportation Safety Board investigations. The obvious intent of the SPA is to guaranty “that, when seamen provide information of dangerous situations to the Coast Guard, they will be free from the “debilitating threat of employment reprisals for publicly asserting company violations” of maritime statutes or regulations.” Gaffney v. Riverboat Services of Indiana, Inc., 451 F.3d 424, 444 (7th Cir. 2006). In 2010, Congress empowered OSHA to administer claims arising under the SPA.
In the Bouchard case, OSHA issued a preliminary damage award to the seaman consisting of:
- Back pay with interest plus compensatory damages for losses to his 401(k);
- An additional two years of lost wages in lieu of reinstatement;
- No less than $50,000 for emotional distress, pain and suffering, loss of reputation, and mental anguish resulting from Bouchard’s adverse employment action; and
- No less than $200,000 in punitive damages for Bouchard Transportation Company Inc., B. No. 272 Corp; Morton S. Bouchard, III; Brendan Bouchard; and Kevin Donohue’s reckless disregard for the law and callous indifference for seamen’s rights under the SPA and egregious conduct
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