Inland River Seminar Focuses On Safety And Training
Industry members gathered September 22 at the Missouri Athletic Club, St. Louis, for the fifth annual Inland River Seminar. Hosted by Fox Smith LLC, the event brings together professionals across law, insurance and business fields to discuss various aspects of the maritime world and the laws that impact the industry.
The panels were moderated by Ron Fox, longtime lawyer at Fox Smith, LLC, with more than 40 years of experience as a maritime defense attorney.
Hiring Best Practices
The seminar began with its first panel on employment law and hiring best practices. Fox Smith Partner Meggie Gentzen and Chris Lenoir, director of personnel-operations at Magnolia Marine Transport Company, were in conversation with Fox on the subject.
The key takeaway panelists stressed to the audience was the importance of writing job applications and descriptions that were in alignment with the law to avoid any doubling-back and preventable complications in the hiring process.
When it comes to hiring new crew members, Gentzen acknowledged the difficulties that companies often face. The Americans with Disabilities Act, enacted in 1990, outlaws discrimination against workers with disabilities. Gretzen noted that most deckhands and maritime crew members are veterans or have worked blue-collar positions, fields that may have led to previous injuries.
Gentzen suggested the best way for companies to navigate this is to have a conditional offer letter, one which outlines bare minimum physical skills needed to do the job. Safety is the highest priority, Gentzen said, and employers must do their best to ensure that they are hiring applicants who are not at further risk for injury if it is preventable.
Lenoir advised employers to have a company physician, or to partner with a medical team such as HealthWorks, LLC, to ensure that all necessary medical testing is done. Medical staff can also help determine if an applicant is physically fit for the job. If possible, X-Rays and MRI scans can be highly informative to determine if applicants have any underlying conditions or injuries that could put them at risk for further injury. The more information a potential employer has, the more support that company will have when it comes to withdrawing a conditional offer.
Gentzen and Lenoir also stressed the importance of conducting departure forms and making sure that each and every incident is recorded to the best of the company’s ability. If an incident isn’t documented, it can be difficult to determine if an injury occurred when an employee was on or off the job site.
The Positive Drug Test
Allison Stock, Ph.D, joined Fox Smith Partner Stas Levchinsky and Fox for the second discussion of the day. Stock, a toxicologist with extensive experience in both the federal government and private industry, discussed cannabis use in the maritime industry and the effect it has on the brain.
Stock described cannabis as a “fat-loving” drug, meaning it is stored in fat cells and lingers longer in the body than alcohol, which is water soluble. Unlike alcohol, cannabis does not have a generalized percentage limit to determine at which point coordination, judgment and other necessary skills are impaired. Cannabis effects are unique to the individual, and chronic users can often function with even high levels in their systems, though their coordination can still be affected.
“A positive test doesn’t necessarily mean impairment, and a negative test doesn’t mean sobriety,” Stock said.
Stock advised business owners to always double test when conducting a post-accident drug screening. Urine and saliva tests are the most common and accessible methods for screening, but Stock encouraged the audience to consider blood tests as well.
A urine test for cannabis is a qualitative test, meaning that the presence of cannabis is either detected or it isn’t. A blood test, however, is qualitative, meaning that cannabis levels can be measured numerically. Specific metabolites can also be tested, allowing medical professionals to determine not only how much of the drug is in someone’s body, but also how long it has been in that person’s system.
Stock advised that in today’s day and age, drug testing has to be more rigorous than it did in the past. Cannabis today isn’t just cannabis; it’s engineered to have higher THC.
“Your grandparents’ marijuana isn’t today’s marijuana,” Stock said.
Damage To Government Property
During the fourth panel, Ted Lucas, partner at Fox Smith, LLC, and Neil Anderson, an independent marine surveyor and damage claim consultant, discussed the kinds of claims operators can experience in the event that government property is damaged. Lucas explained that in the event of a lock or dam damaged by an operator, the government can pursue either a general maritime law negligence claim against the company responsible or an action under the Rivers and Harbors Act.
When it comes to a general negligence claim in maritime law, the operator is presumed to be the one at fault for the damage. Operators can use comparative fault as a defense, which places a portion of the responsibility back on the government. Another defense is the Limitation of Liability Act, which caps the amount of money the operator must pay for the damage.
According to Lucas, negligence claims under the Rivers and Harbors Act, however, are worse for the operator than general maritime negligence claims. In some states, the government can only pursue a Rivers and Harbors Act claim against the vessel rather than the company itself. In some states, such as Kentucky, Tennessee, Ohio and Michigan, the government can file a Rivers and Harbors Act claim against both the company and the vessel.
Anderson stressed the importance of hiring a surveyor who will not only assess equipment, but structures, too. He also suggested that the surveyor stay to oversee the repairs of government property to ensure that the operator is paying for an accurate amount of labor.
Anderson shared that he was once hired as a fact witness for an operator to ensure the number of workers allocated to the project. He attended all safety meetings and was present for the repairs. He took photos of the sign in sheet that accounted for each repair worker. When it came time to receive the bill, the operator was charged for two to three times the number of workers who were actually present on the project.
“They’ll throw everything at it whether it’s accurate or not,” Anderson said.
Anderson also noted that letters of notice from the Corps regarding incidents have been experiencing a backlog. One audience member shared that his company recently received six letters from the Corps for incidents that occurred as long ago as 2022.
Maritime Personal Injuries
The maritime industry is a dangerous one, and though operators are continuing to improve safety standards and achieve safety goals, injuries and accidents will inevitably continue to be a fact of life on the water. According to panelists, injuries are most often seen in two kinds of mariners: green deckhands and long-time rivermen. Levchinsky was in conversation with Shea Melton, director of EHSS and operational excellence at Magnolia Marine Transport, as well as Peter Montecuollo, assistant general counsel at Ingram Barge Company, for the discussion.
According to Montecuollo, the foundation of all incident and claims prevention is keeping mariners safe.
“Our main goal when any mariner steps onto one of our vessels is to get them home in the same condition that they arrived in,” Montecuollo said.
Panelists urged audience members to conduct a review on their safety management system (SMS) at least once a year, a standard required at most companies. Levchinsky explained to operators that policies should focus on hazard analysis protocols that encourage workers to better identify risks, adjust to a situation and ask necessary questions.
“It’s impossible to come up with every single scenario that could happen down on a tow or otherwise,” Levchinsky said. “Do your best to implement good decision-making and good processes so that you can generally say that you have people well trained to do the job safely, whatever circumstance you’re in.”
“There’s a human factor there, which comes down to that training factor,” Melton added. “We’re going to give them a process, and we’re going to define that through our SMS and hope that for the best of times that they can consider prevailing conditions. Everybody deals with the mariner steering their boat. There aren’t enough policies for every bend in the river to write a safety rule for it.”
To Levchinsky, some of the most frightening things to come across when reviewing company safety policies are words like “must”, “shall” and “always.” In the courtroom, this language can be used against the company as evidence that it violated its policy. Safety management systems should avoid such language and instead reflect the constantly changing conditions the industry must adapt to.
“There are things that are clearly common sense,” Montecuollo said. “But if it’s written into the policy, it should be mechanical, and there should be, in general, an overwhelming majority that gives discretion where you’re empowering your associates to evaluate the situation, to utilize the training that was given to them and make a decision based on the circumstances that are presented to them in that moment.”
Green deckhands are apt to get injured simply because of inexperience. They may not be as aware of the dangerous situations they are putting themselves in. Levchinsky also pointed out that injuries are common among maritime veterans, including captains. Professional complacency is a common phenomenon operators face; veteran crew members are so used to the dangers of the industry that hazardous situations may be underestimated until it is too late. Of the two, the latter is the scariest for operators. Crew culture on a towboat starts with the captain; when a captain is complacent and neglects safety, the same attitudes are often reflected in the rest of the crew.
So, what happens after a mistake is made and an incident occurs? Panelists agreed that there should be some procedure for holding mariners accountable. An appropriate punishment should be given after the mariner has recovered if they’ve been injured. Refusing to hold a mariner accountable gives the perception that a discipline strategy doesn’t exist, which can be dangerous when trying to enforce safety protocols.
Levchinsky also advised audience members to make sure that all records surrounding an incident are consistent. Companies can run into legal trouble if there are discrepancies in the way an incident is described.
