A
Corpus Christi Fire Department vessel attempts to extinguish a fire
onboard a barge approximately three miles from the Port Aransas, Texas,
jetties Oct. 20, 2017. A Coast Guard Corpus Christi MH-65 Dolphin and
HC-144 Ocean Sentry are searching for two missing crewmembers. U.S.
Coast Guard photo.
Bouchard Transportation Lawsuit: Safety Record Not Relevant in Deadly Barge Explosion Investigation
August 8, 2018 by Editorial
Bouchard Transportation of Melville, New York, wants the Coast Guard’s investigation limited to the loaded oil barge which exploded in 2017 off the coast of Texas, killing two deckhands. But the Coast Guard took testimony about the recent history of maintenance and safety issues of the company’s fleet, calling the evidence relevant to its analysis of the fatal explosion. Coverage of the Coast Guard’s hearing on the incident can be found here.
By Barbara Liston (Clearview Post) –
A New York-based shipping company has sued in federal court to rein in a U.S. Coast Guard investigation into the cause of a 2017 explosion of a loaded oil barge off the coast of Texas that killed two seamen.
Bouchard Transportation claimed in a lawsuit in U.S. District Court in Houston that its shipping customers were monitoring a Coast Guard public hearing in July into the cause of the explosion.
The company said that its reputation was being irreparably harmed by the testimony, which was live streamed over the internet, according to the complaint filed midway through the hearing by company lawyer David James of Clark Hill Strasburger in Beaumont.
The company cited testimony from current and former employees concerning safety being a “middle” priority for Bouchard, a stressful and intimidating work atmosphere, high employee turnover rate and general “unsafe” conditions on Bouchard vessels.
The company also said testimony by current and former employees about Bouchard’s safety culture amounted to a “character attack.”
Bouchard sought an emergency order to temporarily shut down the hearing. Although Judge Gray Miller refused to stop the proceedings, the lawsuit remains pending over the scope of the evidence to be considered in the Coast Guard’s final report.
Zachariah Jackson, 28, of Salt Lake City, and Du’jour Vanterpool, 26, of Houston, died after Bouchard’s Barge No. 255 caught fire and exploded as it was getting underway to a refinery in Corpus Christi.
Bouchard argued that the Coast Guard exceeded its authority by eliciting testimony about the company’s fleet and operations in general over the past two decades rather than limiting the inquiry to the single oil barge and explosion.
“Since it is being broadcast live over the internet, Bouchard’s customers are observing Bouchard being accused of virtually every form of wrongdoing and safety violation in its entire history; all under the guise and purported authority of a single marine accident, aboard a single vessel, in October 2017 which is getting very little attention,” the motion for a temporary restraining order stated.
Along with current and former Bouchard employees, professional ship inspectors testified during the two-week-long hearing in Houston, and thousands of documents were compiled.
After evaluating the evidence, the Coast Guard will issue a final report on the cause of the accident and deaths, recommendations to prevent a recurrence and evidence, if any, of violations of the law.
Bouchard also objected in its lawsuit to the Coast Guard granting interested party status to victims of the explosion, including the families of the dead seamen, who are suing the company. Interested parties are given access to collected evidence.
Jackson’s parents are suing Bouchard for more than $1 million. The family alleges the vessels were “improperly maintained, dangerous, unseaworthy, and otherwise unfit for the purpose they were being used,” according to the complaint filed in state court in Corpus Christi by Kurt Arnold of Arnold & Itkin in Houston.
Vanterpool’s survivors also have sued in state court in Houston.
Bouchard is trying to block the families’ lawsuits by seeking protection in federal court under a 167-year-old law written in the era of wooden Clipper ships to protect commercial ship owners from paying the full cost of damages in an accident.
The Limitation of Liability Act of 1851 limits the potential damage payout to the post-accident value of a ship plus the value of the ship’s freight – but only if the ship owner lacked knowledge of the problem or conduct leading to the accident.
In response to Bouchard’s petition for protection under the law in the U.S. District Court in Corpus Christi, Jackson’s attorneys say Jackson informed company management of multiple problems on the B255 barge in the weeks before the explosion, and asked multiple times for repairs to be made.
Bouchard has a “documented history of failing to operate their barges in a safe manner and putting the crew of their barges at grave risk,” Arnold wrote.
Bouchard also wants the court to prohibit the Jackson family from seeking damages for the pain and suffering that the family says Jackson endured before his death. The company suggests the he likely died instantly from shrapnel from the explosion.
However, the families are fighting back with a report by Kendall Von Crowns, deputy medical examiner in Houston. Crowns concluded that Jackson likely was engulfed in fire long enough for his shoes to burn and melt before being hit by shrapnel and blown into the Gulf of Mexico where he likely died from a combination of drowning and bleeding to death. His body was never found.
Bouchard is seeking to limit its total damage payout from the explosion under the limitation law to $5,952,151. The figure is based on an appraisal obtained by the company of the 39-year-old tugboat Buster Bouchard, which was pinned to barge B255 at the time of the explosion, which estimated its value at $5.7 million, plus the cargo valued at $252,151.
The most famous application of the limitation law occurred in 1912 after the sinking of the Titanic when damages were limited to $92,000 – or $41 for each living or dead passenger – based on the value of a few salvaged life boats and earnings from the voyage.
A bench trial is set for Jan. 14, 2019 at which Judge Nelva Gonzales Ramos will decide whether the limitation law applies in the Bouchard barge explosion and whether to grant partial summary judgment on pain and suffering damages.
Links to articles covering last month’s Coast Guard hearing:
Part 1: ‘I Was Hearing Blasts Every Second
Part 2: ‘He Slipped Out of His Life Jacket and Sank to the Bottom’
Part 3: Conflicting Testimony and Disputed Phone Calls
Part 4: Former Bouchard VP ‘Shocked’ at Condition of Barge 255
Part 5: ‘No one could say they didn’t know about the problems’
Part 6: Final Day – ‘Sitting On a Big Powder Keg’
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Two Missing After Explosion on Crude Oil Barge Off Port Aransas, Texas
October 20, 2017 by Mike Schuler 
A barge on fire approximately three miles from Port Aransas, Texas, jetties Oct. 20, 2017. U.S. Coast Guard Photo
Update 2: The Coast Guard said Sunday that it has suspended its search for the missing two crew members, contradicting an earlier report one crew member had died.
Update: The U.S. Coast Guard has confirmed that one person has died and another person was still missing after a fire on barge operated by Bouchard Transportation.
The company issued the following statement about the accident.
Bouchard Transportation reports that a fire occurred today aboard one of their barges at approximately 4:30 am local time near Aransas Pass, Texas.
For privacy purposes, we are not releasing any information about our crew and trust you respect this decision.
We have no information regarding pollution or the cause of the fire at this time.
Our tug which, was pushing the barge, had 6 crew members on board and we are working closely with the Coast Guard to ensure their safety.
All proper emergency notifications have been made and response resources have responded.
The incident is under investigation and Bouchard Transportation, as operator of the tug and barge, is working closely with the appropriate authorities.
The Company will provide further information on this incident as it becomes available.
The tug involved is the Buster Bouchard.
Earlier: The U.S. Coast Guard is searching for two missing crew members following an explosion and fire onboard a barge loaded with crude oil off Port Aransas, Texas on Friday.
A vessel with the Corpus Christi Fire Department was fighting to extinguish the fire.
The barge is located approximately three miles from the Port Aransas, Texas, jetties, according to the Coast Guard. 
A Corpus Christi Fire Department vessel attempts to extinguish a fire onboard a barge approximately three miles from the Port Aransas, Texas, jetties Oct. 20, 2017. A Coast Guard Corpus Christi MH-65 Dolphin and HC-144 Ocean Sentry are searching for two missing crewmembers. U.S. Coast Guard photo.
A Coast Guard Corpus Christi MH-65 Dolphin and HC-144 Ocean Sentry are searching for two missing crewmembers.
There were a total of eight crew members on board, according to reports.
The barge was carrying 140,000 barrels of crude oil to a refinery when the incident occurred, U.S. Coast Guard officials said.
The fire is believed to have started about 4:30 a.m. local time.
gCaptain has learned that the barge in question is the 158,000 barrel capacity B255, which was connected to the tug Buster Bouchard.
The articulated tug-barge (ATB) unit belongs to Bouchard Transportation, the United States’ largest independently-owned ocean-going petroleum barge company.
A safety zone has been established surrounding the vessel. There are reports of minor pollution in the water.
Bouchard has not yet responded to gCaptain’s request for comment.
Epic Systems Corp. v. Lewis was a case decided by the Supreme Court of the United States on how two federal laws, the National Labor Relations Act (NLRA) and the Federal Arbitration Act (FAA), relate to whether employment contracts can legally bar employees from collective arbitration. The Supreme Court had consolidated three cases, Epic Systems Corp. v Lewis (Docket 16-285), Ernst & Young LLP v. Morris (16-300), and National Labor Relations Board v. Murphy Oil USA, Inc.
(16-307). In a 5-4 decision issued in May 2018, the Court ruled that
arbitration agreements requiring individual arbitration are enforceable
under the FAA, regardless of allowances set out within the NLRA.
The case had been of significant interest as tens of millions of
Americans are employed under contracts that require individual
arbitration over collective actions. The inability for employees to take
collective action had been said to potentially allow employers to be
less accountable to employees, and would deter employees from taking the
time, cost, and effort needed to resolve individual arbitration,
effectively silencing their concerns.
Following the decision, analysts suggests that Congress needed to take action to restore employee rights.
Justice Ginsburg's dissenting opinion stated that "Congressional
correction" of the majority decision was "urgently in order" to protect
employees. The AFL-CIO also stated that Congress should "immediately enact" legislation to override the ruling. Some reporters opined that the decision would impact how sex discrimination in the workplace would be handled as otherwise protected by Title VII of the Civil Rights Act of 1964, and how that would affect efforts like the Me Too movement, since enforced individual arbitration allows employers to quietly handle such complaints.
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U.S. Supreme Court rules class-action waivers in employment agreements are enforceable
By Ryan J. Kohler , Michael B. McDonald
Thousands of businesses across the nation breathed a sigh of relief on May 21, 2018, as the U.S. Supreme Court, in a 5-4 decision, ruled that employment contracts containing class-action waivers are enforceable under the Federal Arbitration Act (FAA).
The ruling in Epic Systems Corp. v. Lewis not only helps protect thousands of businesses across the nation from costly and time-consuming employment class actions, but also changes the way that claims managers should approach these claims when they first arrive.
Bilateral arbitration benefits both employees and employers because it offers speed, efficiency, and informality. The court has consistently recognized the advantages of bilateral arbitration, especially in the employment context, and many employers now use arbitration agreements.
There are many minor employment law violations that employees truly care about, and the related actions provide fairly small recoveries of just a few hundred or few thousand dollars each. However, if an aggrieved employee or recently terminated employee brings these claims on a class-wide basis, it can mean millions of dollars in damages for systemic violations of employment laws, not to mention hefty attorney costs. To avoid one employee turning a minor issue into a massive class-wide exposure, employers began incorporating class-action waivers into their arbitration agreements.
Although the specific language may vary, class-action waivers provide that the employee and the employer agree to resolve all employment disputes on an individual basis. By agreeing to the waiver provision, the employee gives up the potential opportunity to participate in a class-action lawsuit against the employer or to act as a class representative in bringing a class action. One of the waivers at issue in Epic Systems Corp., for example, stated that all employment disputes would be resolved through individualized arbitration, with claims “pertaining to different employees to be heard in separate proceedings.”
As a sound business practice, class waivers should be included within the employee-employer arbitration agreement due to the deference courts give to arbitration agreements under the FAA. With the court’s ruling, it is expected that the popularity of class-action waivers will rise as businesses continue to seek ways to mitigate risk and reduce litigation costs.
History in the Courts
The Supreme Court asserted in 1991 that employment disputes could be subject to an employer-employee arbitration agreement, and, in 2011, the Supreme Court affirmed a class-action waiver related to consumer class actions in AT&T Mobility LLC v. Concepcion. In affirming the enforceability of these provisions, courts have traditionally enforced waiver provisions under the FAA. The FAA expresses a “liberal policy of favoring arbitration agreements” that essentially directs the courts to enforce arbitration agreements according to their terms. The FAA also has been held to at least partially preempt competing state laws regarding the enforceability of arbitration provisions.
Fast forward to the present, and although the Supreme Court has affirmed the enforceability of class waivers in consumer and merchant actions, the court’s Epic Systems Corp. decision in favor of employers was not a foregone conclusion. In 2012, the National Labor Relations Board (NLRB) ruled that an arbitration agreement where the employee agrees to waive the right to bring or participate in a class action violates the National Labor Relations Act (NLRA).
In 2016, the Ninth Circuit Court of Appeals, in Ernst & Young LLP v. Morris, threw the matter further into doubt when it ruled that class waivers were unenforceable under the NLRA. In its ruling, the Ninth Circuit held that class-action waivers infringed upon the employee’s right to engage in collective action, a right protected under the NLRA that could not be waived by the employee, especially since there is generally an unequal bargaining power between employees and employers.
The Ninth Circuit’s ruling clashed with a contemporaneous Seventh Circuit decision that held that waiver provisions are enforceable. The split amongst the federal circuits set the stage for the Supreme Court’s review of this issue.
Supreme Court Review
The Supreme Court framed the competing considerations as: “Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed to with their employers?” In other words, does the FAA or the NLRA control the enforceability of class waivers in connection with employment disputes?
The FAA generally protects the rights of parties to privately contract for arbitration to resolve disputes, and to set the parameters of how such an arbitration hearing shall proceed. The dissent argued that class-action waivers infringe upon the employee’s right to organize unions and collectively bargain under the NLRA. The majority opinion, written by Justice Neil Gorsuch, noted that the NLRA does not mention an employee’s right to participate in a class-action lawsuit; it protects the employee’s right to bargaining collectively and to participate in collective action through union-related activities.
Congress passed the NLRA after it passed the FAA, and since there is no mention of class actions or arbitrations in the NLRA, the majority held that the NLRA does not protect a worker’s right to participate in a class-action lawsuit or otherwise preempt arbitration agreements.
The employees in Epic Systems Corp. next argued that the FAA contains a “savings clause” that permits courts to refuse the enforcement of arbitration provisions “upon such grounds as exist at law or in equity for the revocation of any contract.” The employees argued that the savings clause applied because the NLRA prohibits any agreement that infringes upon the employee’s right to participate in collective action.
In response, the majority reasoned that the savings clause only concerns traditional contract defenses such as illegality; there is nothing illegal about an agreement to resolve employment claims on an individual basis.
Though the Supreme Court noted that the underlying policies surrounding this issue are debatable, it ultimately determined that the FAA’s plain language requires the enforcement of arbitration agreements according to their terms, including those terms that require individual proceedings. In short, the Supreme Court held that the NLRA does not protect an employee’s right to participate in a class-action lawsuit and that employment agreements that require employment disputes to be resolved via one-on-one arbitration are enforceable under the FAA.
What Does It Mean for Risk and Claims Managers?
This long-awaited decision reduces the possibility of costly and time-consuming class-action employment lawsuits. Risk managers should assess their current employment practices and include arbitration provisions with class waivers. They should also make sure that the arbitration agreements are actually enforceable. Plaintiffs routinely challenge the enforceability of arbitration agreements with class waivers.
An employee should specifically sign an arbitration agreement—it is not enough to simply have a clause in an employee handbook calling for arbitration. Additionally, intake policies that use electronic signatures for the acknowledgement of arbitration forms should have adequate steps to authenticate an employee’s signature.
Claims managers should promptly review any class claims for potential arbitration agreements and work with counsel to immediately move to compel arbitration of any class disputes to ensure that the client has not waived its rights to enforce the agreement. Knowing when and where to look for a potential class-action waiver or employee-employer arbitration provision is an important part of handling any employment claim. As noted earlier, plaintiffs often attempt to challenge the authenticity of arbitration agreements, so it is important to work closely with a client’s human resources department to ensure the company is ready to support a petition to compel arbitration with declarations that can adequately authenticate the arbitration agreement and class waivers to the courts.
What Does This Mean for Employers?
Employment class actions are a source of significant financial and organizational risk for employers. In California, one mistake on a weekly pay stub could result in dozens of labor code violations per year for every employee. Likewise, an error in scheduling rest breaks could mean violations for every employee for every day of work.
If one employee (or, more typically, a recently terminated employee) files a claim for even a minor California Labor Code or Federal Fair Labor Standards Act violation, a class-action lawsuit has the potential to put every one of these violations at issue. The ability to contractually resolve employment disputes on an individual basis, where claims are typically much smaller and less complex, provides a considerable benefit to employers.
Although the decision in Epic Systems Corp. does provide some relief for employers, it does not preempt certain state laws, including claims based on the California Private Attorneys General Act, (PAGA). Although PAGA claims are based on the employee’s allegations against the employer, the claim is technically brought on behalf of the State of California, with the employee and her attorney acting as a deputized private attorney general of the state.
Since the claim is technically brought on behalf of the State of California, it is not considered a class action and, hence, not subject to a wavier in an arbitration agreement. That said, an arbitration agreement that states all claims must be brought on an individual basis can limit the types of damages recoverable in a PAGA action to the types of civil penalties that the state can assess against employers for violations of the labor code.
The ruling, however, does not mean that all class-action waivers are automatically enforceable. Arbitration and class-waiver agreements must still comport with state and federal laws. Courts, for example, still require that the arbitration and/or class-waiver provision be an enforceable agreement under normal contract law; defenses such as unconscionability still apply and the provision must, of course, encompass the underlying claim.
In some jurisdictions, employment offers that are contingent upon an employee’s agreement to a waiver provision without any opt-out procedure may not be enforceable. For these reasons, businesses that use, or are considering, class-action waiver provisions in their employment agreements should consult with an experienced employment attorney to help ensure that the provisions are enforceable under state and federal laws.
45 injured in massive fire at Bharat Petroleum plant near Mumbai, locals feel tremors
The Mumbai Fire Brigade rushed seven fire engines, two foam tenders and two jumbo tankers to the Bharat Petroleum plant in Chembur.
Updated: August 09, 2018
By HT Correspondent
Boiler blast at BPCL mahul unit in which 43 works injured. (Vijayanand Gupta/HT Photo )
At least 45 workers were injured, two critically, on Wednesday after a major fire broke out at Bharat Petroleum Corp Ltd’s refinery in Chembur, an eastern suburb of Mumbai in Maharashtra, officials said.
“After a preliminary treatment at BPCL’s first aid centre, 22 were allowed to go home and 21 were shifted to Inlaks Hospital in Chembur. They have fractures and lacerated wounds. One is being treated in ICU (intensive care unit),” deputy commissioner of police (zone VI) Shahji Umap said.
BPCL had earlier said in a statement that two people had sustained minor injuries and were attended at the refinery’s medical centre before being taken to a hospital for further treatment.
“The fire is still on but is under control,” the company said.
Officials also said 20 workers have been evacuated from the plant.
The Mumbai Fire Brigade, which rushed seven fire engines, two foam tenders and two jumbo tankers to the spot, said the fire was confined to the hydrocracker plant and that a cooling operation was in progress.
“Due to the tremendous heat and build up pressure, firefighting is being carried out from a safe distance using fixed monitors,” chief fire officer PS Rahangdale said.
Seven monitors of fixed firefighting installations and four hose lines of fire engines were being used to contain the level 3 fire that requires immediate evacuation.
Locals reported earthquake-like vibrations from as far as 4km from the plant. Residents from Deonar, which is north of Chembur, also reported vibrations from the blast.
Residents from 72 Maharashtra Housing and Area Development Authority (MHADA) buildings, who have been rehabilitated close to the refinery, raised slogans against the government outside the plant.
The locals said they are grappling with several health issues due to the pollution caused by the refinery.
DUBUQUE COUNTY, Iowa (KCRG-TV9) --
Cleanup is underway across Dubuque County after a leak from a large diesel storage tank. Authorities said it could take weeks or even months to clean up.
The leak happened at a BP storage facility off Old Highway Road near Peosta. Staff members with the Iowa DNR say BP was able to contain most of the leak, but more than 20,000 gallons may have spilled out into a nearby creek.
The leak came from one of the storage tanks, which can hold 2.5 million gallons of diesel at a time.
Tom McCarthy, an environmental specialist with the Iowa DNR, confirmed to TV9 that 20,500 gallons was unaccounted for when they were notified of the spill.
"They've contained most of the spill on site. Some of the spill did go into Catfish Creek," McCarthy said.
Catfish Creek covers 57 square miles across Dubuque County, and is a well-protected watershed by multiple groups- including the Catfish Creek Watershed Management Authority. Both Eric Schmechel and Dean Mattoon serve as administrators for the group, and until TV9 contacted them, they were unaware of the spill. Both expressed concern with how the spill will affect the creek.
McCarthy explained the cleanup process includes five "boom sites" that control the flow of the water on the creek, as well as collect the diesel on the surface of the water into storage units without getting waterlogged. From there, the diesel is put into tanks.
But many, like Schmecel and Mattoon, are concerned about the environmental impact the diesel spill could have on the area.
"[It] could affect mainly birds and mammals," McCarthy said. "We don't see a lot of impact from diesel spills into streams on the fish. But we're just looking to make sure that everything's cleaned up."
But that does not coincide with a similar, but smaller-scale incident members of the Dubuque County Conservation Board have experienced in the past.
Executive Director Brian Preston said in the past they discovered a diesel spill in a nearby trout stream when people tasted something weird-- and it was not 'fishy.'
"The folks called us and report that their trout tasted like diesel fuel," Preston said. "We found that really odd."
Preston said upon investigation, there was diesel in the stream, which took a while for them to clean up. But he said the lasting effects could be on how long it takes before the fish and the rest of the creek are able to get back to normal.
"I think it'll take a couple weeks or months for the diesel to pass through their system," Preston said.
In the meantime, Preston urged visitors to find other plans and stay out of the water in those areas, at least until cleanup is complete. He said there are plenty of other unaffected areas along the creek people can fish and spend time in.
As far as a timeline on how long the cleanup will take, McCarthy said he was still uncertain.
"The cleanup's going to take some time," McCarthy said.
EPA Investigates Contaminated Soil in Burlington's Old North End
Posted By Katie Jickling
Tue, August 7, 2018
Burlington , Vermont
The U.S. Environmental Protection Agency is investigating soil vapors in the Old North End in Burlington, VT after elevated levels of chemicals were detected in a home.
In July, testing at a house on the northern part of Elmwood Avenue revealed two chemicals at levels above federal limits, according to Michael Nahmias, an environmental analyst for the Vermont Department of Environmental Conservation. The department has not yet found the source, he added.
The chemicals are known as perchloroethylene (PCE) and trichloroethylene (TCE). PCE and TCE are commonly used for dry cleaning and can also be found in cleaning products and grease removers. The neighborhood was formerly home to two dry-cleaning businesses.
Exposure can cause nausea, vomiting, dizziness and irritation, according to the U.S. National Library of Medicine. Longterm exposure to PCE can lead to changes in memory and mood, and potentially to cancer.
A home sale prompted the test that revealed the chemicals, Mahmias said. When state officials realized the chemicals could be present along several blocks, they called in the EPA for additional testing.
Federal investigators measured elevated levels of PCE and TCE in a block-long stretch of Elmwood Avenue, between Cedar and Lafountain streets. Now the EPA is testing for vapors around the Integrated Arts Academy at H.O. Wheeler and along sections of Spring and Archibald Streets, Intervale Avenue, Walnut Street and Lafountain Street. Nahmias said he didn't know yet what kind of risk the chemicals could pose.
Nahmias called the chemicals "common contaminants" and estimated that they have been detected at around a dozen sites in Burlington over the years. Already, he said, tests have shown the chemicals along the sewer main on Elmwood Avenue — which "could act as a conduit to carry the vapors" to other homes, he said.
The EPA will be taking soil and air samples throughout August, according to a press release from the agency. The EPA also plans to send out flyers to the neighborhood's residents.
The Vermont Department of Health, the Burlington School District, and the City of Burlington are assisting in the investigation.
