The Fifth Circuit, in Thomas v. Hercules Offshore Services, L.L.C., Case No. 17-30638 (Fiftth Cir. March 2, 2018), concluded per curiam that the Occupational Safety and Health Administration (OSHA) safe workplace regulations had been preempted by the United States Coast Guard (USCG) regulations for injuries occurring on the Outer Continental Shelf (OCS) on a foreign-flagged jack-up drilling rig (or as the opinion described the rig, a “mobile offshore drilling unit” (MODU) in the parlance of the USCG's OCS regulations at 33 CFR Subchapter N and 46 CFR Subchapter I-A). As a result, the owners of the MODU were not negligent for injuries sustained by a galley hand who tripped and fell over a raised doorsill that was constructed in compliance with the USCG's specific regulations for accommodation space specifications (46 C.F.R. §§108.197, 205). The court also did address other issues, notably the McCorpen defense in relation to the plaintiff's claims for maintenance and cure finding that the District Court did not err in finding the McCorpen defense applicable. See Thomas v. Hercules Offshore Services, L.L.C., Case No. 17-30638 (5th Cir. March 3, 2018).

Plaintiff in Hercules was a galley hand on the Hercules 264 MODU operating on the OCS in the Gulf of Mexico offshore of Louisiana. See Hercules, at 2. In 2013 while working aboard the Hercules 264, the plaintiff tripped and fell after her foot struck a raised doorsill between her state room and connected bathroom. Id. The doorsill was 2 inches high and 3.5 inches wide. Id. After the fall, plaintiff suffered from pain and was taken ashore for medical treatment where she was diagnosed with lumbar strain and a right hip contusion. Id. Hercules paid maintenance and cure (“M&C”) to the Plaintiff from the date she reported her injury. Id.

Prior to Plaintiff's employment with Hercules, plaintiff failed to disclose to Hercules two prior car accidents resulting in injuries to her back. Plaintiff, however, was able to pass the pre-employment physical exam required prior to her employment with Hercules.

Approximately 1.5 years after Plaintiff suffered her injuries she filed her lawsuit against Hercules in the Middle District of Louisiana alleging claims for negligence under the Jones Act, unseaworthiness under general maritime law, and a claim for M&C benefits, alleging inter alia that the construction/layout of the doorsill violated OSHA workplace safety regulations. Id. Shortly after filing its Answer, Hercules filed two separate motions for summary judgment. Id. One motion challenged whether Hercules was liable under the theories presented by the Plaintiff and the second motion challenged whether the Plaintiff was entitled to M&C payments due to her failure to disclose previous injuries on her employment application. Id. The district court granted both of Hercules motions and dismissed the Plaintiff's claims. Id.

On appeal the Fifth Circuit addressed the following issues ruled on by the District Court: (1) whether the Hercules 264 was a USCG “inspected” vessel such that the OSHA regulations were preempted; (2) whether the district court erred in finding that there was no evidence supporting plaintiff's claims for negligence under the Jones Act and unseaworthiness under general maritime law; and (3) whether the Plaintiff is entitled to M&C after failing to disclose previous injuries to Hercules on her employment application. The Fifth Circuit upheld the District's ruling on all three issues.

Of the most import are the Fifth Circuit's discussions on the first issue.

OSHA's Regulations Preempted on Foreign-Flagged MODU

On appeal Plaintiff challenged the District Court's ruling that the vessel was an “inspected” vessel and therefore the OSHA regulations were preempted. The Fifth Circuit disagreed with the Plaintiff, upholding the District Court's ruling.

By way of context, 46 U.S.C. 3301 sets forth a listing of 15 “types” of vessels that are subject to inspection by the USCG, and this list does not include MODUs/jackup vessels specifically. Plaintiff relied on the absence of MODUs from the list to argue that the Hercules 264 was “uninspected” and that OSHA regulations were thus not preempted under the Supreme Court's holding in Chao v. Mallard Bay Drilling, Inc, 534 U.S. 235, 122 S. Ct. 738, 742 (2002).

This statutory/regulatory context frames the issue faced by the Fifth Circuit in Thomas. As the Fifth Circuit noted, “[i]t is undisputed [under Chao] that if a vessel is an inspected one, then the Coast Guard regulations preempt OSHA's regulations. . . . However, if the vessel is an uninspected one, the Supreme Court has explained that OSHA's regulations are not preempted unless the USCG has exercised its authority “either by promulgating specific regulations or by asserting comprehensive regulatory authority over a certain category of vessels.” Id. at 3-4.

The Fifth Circuit, however, focused on the other two avenues (besides “inspected” status under the plain terms of §3301) whereby the Coast Guard regulations preempt OSHA: when the “Coast Guard has exercised its authority “either by [1] promulgating specific regulations or [2] by asserting comprehensive regulatory authority over a certain category of vessels.” Id. at 4 (citing Chao, 122 S. Ct. at 743). Based on the foregoing, the Fifth Circuit addressed the importance of USCG's regulations and authority on the OCS, and held that MODUs (even foreign-flagged MODUs) engaged in operations on the OCS are sufficiently within the “comprehensive regulatory authority” exercised by the USCG on the OCS to preempt OSHA regulations.

A litigation associate in Baker Donelson's Houston office, Kat C. Statman's practice covers a broad variety of matters in both state and federal courts throughout the nation. He also advises clients in a variety of areas related to the maritime and offshore industries. He can be reached at [email protected].