In November, 2013, one of the historic U.S. shipping companies hired Welsh to work on a container ship as 2nd Assistant Engineer. The ship flies a U.S. flag and participates in the U.S. government’s Maritime Security Program (MSP). The company advertises the ship as part of its “U.S. Flag Services” and a critical link for many U.S. Government efforts worldwide.
Soon after setting sail, Welsh started raising concerns about the lock-out tag-out procedures. The 1st Engineer told him that each tag required a separate piece of paper and he did not want to keep track of all that paperwork.
On December 23, 2013, Welsh followed the manufacturer’s instructions for maintenance of the #2 Diesel Generator and turned on the generator and warmed it up to reach the required exhaust temperature. The 1st Engineer countermanded Welsh and shut it off. The company then terminated Welsh on December 25, 2013, citing the disagreement over the engine maintenance as a reason.
When Welsh came to me, I recognized that he had been fired for raising safety issues. I file a complaint with the Department of Labor under the Seamans Protection Act (SPA). OSHA closed the complaint without conducting any interview of Welsh, and without receiving any response from the company.
So, I requested a hearing from the Department of Labor’s Office of Administrative Law Judges (OALJ). The company moved to dismiss the case citing an OSHA regulation that says a “seaman” is someone working for a “U.S. citizen.” The company says that since it was bought by an overseas company a few years ago, it is not covered by the SPA. I disagreed. Now the ALJ is allowing discovery to commence. I am hopeful that my research on this issue will help the Department of Labor to recognize that the SPA protects American seaman working on U.S. flag vessels, no matter who owns them.
The Seaman’s Protection Act (“SPA”), 46 U.S.C. § 2114(a), provides in part as follows:
(a)(1) A person may not discharge or in any manner discriminate against a seaman because-
(B) the seaman has refused to perform duties ordered by the seaman's employer because the seaman has a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public[.]
While the Department of Labor has added a regulation defining a “citizen of the United States,” and a “seaman” as an employee of such a citizen, these definitions have no basis in text of the statute itself. The statute gives the Department no authority to promulgate substantive regulations, and the Department’s own statement indicates no intent to make any substantive change. Moreover, the caselaw on extraterritorial application of whistleblower protection laws has advanced considerably in recent years.
Welsh objected to the company’s motion to dismiss on the following grounds:
- The plain text of the SPA applies to any “person.”
- The remedial purpose of the SPA urges in favor of finding coverage.
- The regulation is not substantive and cannot alter the statutory scope of coverage.
- The ship flies a U.S. flag and is thereby subject to U.S. law.
- The adverse actions in this case occurred within the jurisdiction of the United States, and U.S. law properly applies. Finding coverage in this case is consistent with the developing law on extraterritoriality.
- The company in this case is a U.S. corporation, and faces liability here for its actions within the U.S., even if it is owned by a corporation of another country.
- Welsh had a reasonable belief that he was working with the scope of U.S. law which includes the SPA.
- Discovery is necessary and appropriate before making a finding of lack of jurisdiction.
You can follow this link to read the full legal argument I made for Maury Welsh. It explores the doctrine of jurisdiction under admiralty law and explains how the United States sets conditions for "cabotage rights" (the right to sail from one U.S. port directly to another, without visiting a foreign port).
Hopefully, other seaman who raise safety issues and suffer for it will be able to use the same arguments to preserve their rights under the SPA. I also hope the Department of Labor will soon issue a final regulation that conforms to the language used by Congress.
By Richard Renner