Last year, in another dispute over who should bear the cost of decommissioning offshore facilities, the Southern District of Texas held that a former sub-assignee of offshore operating rights was entitled to equitable subrogation from the record title owner and initial assignor.  Sojitz Energy Venture, Inc. v. Union Oil Co. of California, 394 F. Supp. 3d 687 (S.D. Tex. 2019).


Continue Reading Fifth Circuit to Hold Oral Argument in Sojitz v. UNOCAL in April 2020

The Bureau of Ocean Energy Management (BOEM) recently issued an Information to Lessees (ITL) regarding the potential applicability of new regulations issued by the Committee on Foreign Investment in the United States (CFIUS) to bids at the upcoming March 18th federal offshore lease sale (Lease Sale 254), which will offer for lease all available, unleased acreage in the Gulf of Mexico region.


Continue Reading Increasing Scrutiny of Foreign Investment in the U.S.: BOEM Puts Companies on Notice of Potential CFIUS Review of Bids at Upcoming Federal Offshore Lease Sale

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.


Continue Reading OSHA Awards Damages for Retaliatory Discharge of Jones Act Seaman in Violation of Seaman’s Protection Act

The saga of the U.S. Customs and Border Protection’s (CBP) ten-year effort to amend its interpretation of key components of the Jones Act continues.  After failed attempts to expand the scope of the Jones Act’s prohibition on activities by non-coastwise endorsed vessels in 2009 and 2017, CBP recently published a notice of proposed modification and revocation of certain ruling letters interpreting the Jones Act (see https://liskow.sharefile.com/d-s45a327d7ae7441e9). Unlike its recent, unsuccessful efforts to amend its interpretations, the current proposal attempts to expand one prohibition while narrowing another.


Continue Reading Possible Change to Jones Act Interpretations Regarding Coastwise Activities

Today the United States Supreme Court issued its decision in this landmark case concerning punitive damages.  The six justices in the majority opinion reversed the Ninth Circuit and resolved a circuit split on this issue.  The question presented was whether punitive damages may be awarded to a Jones Act seaman in a personal injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel.  Justice Alito wrote the majority opinion, joined by Chief Justice Roberts, Justices Thomas, Kagan, Gorsuch, and Kavanaugh.  Justice Ginsburg dissented, joined by Justices Breyer and Sotomayor.


Continue Reading SCOTUS Decides Dutra Group v. Batterton

In a decision that could have far-reaching implications, the United States Supreme Court issued a June 10 opinion holding that California’s wage-and-hour laws do not apply to workers on oil and gas platforms located in open water on the Outer Continental Shelf. The plaintiffs in Parker Drilling Management Services, Ltd. v. Newton, were offshore rig workers who filed a class action asserting that their employer violated California’s minimum wage and overtime laws by failing to pay them for stand-by time while they were on the drilling platform. Both parties agreed that the platforms were governed by the Outer Continental Shelf Lands Act (“OCSLA”), but they disagreed regarding whether the California’s wage-and-hour laws were incorporated into OCSLA and therefore applicable to workers on the platform.
Continue Reading Supreme Court Holds State Wage and Hour Laws are Inapplicable to Offshore Drilling Platforms

On March 29, 2019, Alaska Federal District Court Judge Sharon Gleason granted summary judgment in favor of plaintiff environmental groups in League of Conservation Voters v. Trump, 3:17-00101.  The case stems from Executive Orders issued under the Obama Administration in 2015 and 2016 which withdrew certain areas in the Arctic and Atlantic regions from exploration and development under the offshore oil and gas leasing program.  President Trump issued an Executive Order in 2017 which revoked the Obama withdrawals.  The Court’s summary judgment ruling vacated certain portions of the 2017 Trump Executive Order and concluded that the prior Obama Orders would remain in place.  In effect, the ruling removes the areas in the Arctic and the Atlantic covered in the Obama Orders from the five-year leasing program proposed by the Trump Administration. 
Continue Reading Alaska District Court Vacates Trump Executive Order On Offshore Leasing

After some thirty years of wrestling with the cumbersome six-part test set forth in Davis & Sons, Inc. v. Gulf Oil Corp.,[1] for determining whether a contract to perform services related to oil & gas exploration on navigable waters is maritime, the Fifth Circuit took up In re Larry Doiron, Incorporated[2] earlier this year in an effort to streamline the test and bring clarity to an area of the law mired in uncertainty. 
Continue Reading FIFTH CIRCUIT BEGINS TO CLEAN UP ITS JURISPRUDENCE ON HOW TO DETERMINE WHETHER A CONTRACT IS (OR IS NOT) MARITIME

The stage appears to be set for intervention by the United States Supreme Court following the Ninth Circuit’s recent panel decision in Batterton v. Dutra Group, No. 15-56775 (9th Cir. Jan. 23, 2018).  In Batterton, the Ninth Circuit expressly disagreed with the Fifth Circuit in holding that an injured seaman may recover punitive damages in a claim for unseaworthiness against a vessel owner under the general maritime law.  Compare McBride v. Estis Well Service, 768 F.3d 382 (5th Cir. 2014) (en banc).  The circuit split, which follows disagreement among the lower courts, hinges on differing views of the impact of the Supreme Court’s decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990) on this area of law.
Continue Reading Ninth and Fifth Circuits Split on Issue of Punitive Damages Under Maritime Law

In a highly anticipated ruling, the United States Fifth Circuit Court of Appeals issued its en banc decision in In re: Larry Doiron, Inc., No. 16-30217 (5th Cir. Jan. 8, 2018).  The case called upon the court to determine whether a contract for performance of specialty services to facilitate the drilling or production of oil and gas on navigable waters is maritime in nature.  In ruling that the particular contract at issue in the case was non-maritime, the Fifth Circuit took the significant step of streamlining and re-framing the analysis for maritime contracts generally.
Continue Reading Highly Anticipated En Banc Fifth Circuit Opinion Reframes Maritime Contract Analysis