Best Practices And Liability In Time Of COVID-19
The spread of the novel coronavirus is a brand new situation, and individuals, companies and governmental organizations are adjusting and adapting on the fly, changing plans as new information becomes available.
The pandemic has left a lot of marine operators asking: What should my best practices be in responding to this new situation? How should I anticipate something like this in the future?
These questions were raised and addressed in an online Zoom webinar hosted by Jones Walker on April 7. About 120 people listened in, reflecting the intense interest of mariners, attorneys, marine operators and marine insurers in these topics.
Titled “Legal Liabilities for Vessel Owners Arising Out of COVID-19 Exposure and Coast Guard Protocols and Updates on Operations on the LMR,” the webinar was moderated by Marc Hebert, a maritime attorney and partner in the maritime practice group at Jones Walker. Jeff Tillery, also a partner in the maritime practice group, gave one of the presentations, speaking about potential legal liabilities for vessel owners in the new world of COVID-19 exposure.
Jones Walker hosted the webinar with the support of the Greater New Orleans Barge Fleeting Association. GNOBFA canceled its annual seminar in New Orleans this year in response to the coronavirus.
Coast Guard Perspective
The first presenter was Capt. Kristi Luttrell, commander of Coast Guard Sector New Orleans. Luttrell began by reviewing the CDC’s recommendations and guidelines and outlined steps the Coast Guard is taking to keep its members and members of the public safe.
As companies have been developing and adding to their best practices in response to the virus, the Coast Guard has been reviewing and approving them, but not developing a common standard itself. Luttrell said any plans for responding to an “influenza-like-illness” should include certain elements, not necessarily limited to the following:
• Companies should outline their sanitation measures to be implemented.
• In the event of an employee or crewmember testing positive, companies should be aware of their reporting requirements, which might include their local health care provider, the Centers for Disease Control, the Coast Guard and local authorities.
• Despite possible outbreaks, companies are still responsible for maintaining adequate manning levels aboard their vessel(s). They should maintain the capability to respond to any possible marine incident, including spills, rescues, etc.—just as they would at any other time.
• They should have a plan for how to isolate healthy crew members from infected ones.
• They should have a plan for removing ill or deceased personnel from the vessel.
• They should plan for early communication about any incident. “If you’re unsure, ask,” Luttrell said.
Luttrell said that to date, eight U.S.-flagged vessels (all towing vessels, except for one passenger ferry) and six foreign-flagged vessels, including two cruise ships, had been “impacted” by the virus in her area of responsibility.
High Water Report And Sub M Deadline
Luttrell then gave a high-water-report. She said that during the 2019 season, the Coast Guard in her area of responsibility investigated 1,332 casualties during the high-water season, which was unusually extended due to unprecedented flooding. Nineteen vessels were salvaged during 2019, and two so far in the 2020 season. There were 31 lost anchors in 2019, a 67 percent increase from 2018.
Luttrell said that only 27 percent of towing companies had received Certificates of Inspections so far; by July, 50 percent of them need to have them.
Tillery then shared several hypothetical scenarios to illustrate degrees of risk and liability a company might be exposed to.
• A seaman contracts the virus from touching equipment that had not yet been properly disinfected or wiped down, pursuant to the new company or Coast Guard protocols. The seaman develops symptoms that are observed by a supervisor who fails to follow company or Coast Guard protocols. If the seaman’s weakened condition contributes to the injury of another, the operator could be liable, especially if the seaman is able to prove that he contracted the virus on board the vessel and that the operator did not follow its own coronavirus protocol contained in its response plan. A standard challenge by a seaman’s attorneys of vessel owners is to pick apart and cross-examine the safety officer of the company in minute detail to demonstrate how the company did not follow its own protocol.
• A seaman contracts the virus on the vessel and gives it to another seaman of the same company at a bar or restaurant over a beer. The seaman who gets ill might still have a Jones Act claim, even though he did not contract the virus on the vessel. Jones Act seamen can still have Jones Act negligence claims even if they get sick on land—that is, if they are still “in the service of the ship.”
Tillery also discussed the applicability of the Seaman’s Manslaughter Statute, 18 USC 1115, which authorizes criminal prosecution of any captain, engineer, pilot or employee of a vessel whose negligence or inattention to duties causes death. The statute also authorizes criminal prosecution of any executive officer of a company if the executive officer is charged with the control or management of the operation involved with the death.
Tillery noted that a vessel might be considered “unseaworthy” and the vessel owner strictly liable if a seaman has the virus and injures another due to his illness—even if the vessel owner did not know he had the virus.
Finally, Tillery recommended that vessel owners consider having crewmembers sign questionnaire sheets before and after each hitch. The questions should include: 1) Have you had any fever since you have been off hitch? 2) Have you had any symptoms such as coughing or fatigue? 3) Have you seen a doctor for any of these symptoms while off hitch?
Klint Beckendorf, associate general counsel of CGB Enterprises Inc., said he got a lot of value out of attending the seminar, especially for the insights on how the Coast Guard is responding to the crisis. “This is new territory in many ways,” he told The Waterways Journal. “The needle is moving.” He said his company is performing all of the social distancing and safety measures it can, including taking employee temperatures daily.
While Beckendorf said there will be “no return to the pre-pandemic normal,” he is nevertheless not concerned that the virus will create new and exotic types of liability for his company. His company will address these types of liability “in the same manner that we currently address other potential risk and liability in our operations. We have always had an acronym, ALARP, standing for risk ‘as low as reasonably possible.’ We have always operated that way. This is just a new challenge,” he said.